| Jiminez v Shahid |
| 2011 NY Slip Op 03212 [83 AD3d 900] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Marcella Jiminez et al., Respondents, v Nazer HussainShahid et al., Defendants, Jermaine Stevens, Respondent, and Drenis Properties, LLC,Appellant. |
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In an action to recover damages for personal injuries, etc., the defendant Drenis Properties,LLC, appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated June 4, 2010,which denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and any crossclaims insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantDrenis Properties, LLC, pursuant to CPLR 3211 (a) (7) to dismiss the complaint and any crossclaims insofar as asserted against it is granted.
The plaintiff Marcella Jiminez and her son, the plaintiff Justin Abundiz, allegedly sustainedinjuries when the defendant Nazar Hussain Shahid lost control of his motor vehicle, whichmounted the sidewalk, and struck them as they were standing on the front steps of a buildingowned by the defendant Drenis Properties, LLC (hereinafter Drenis). Abundiz allegedly tried toenter the building to escape the oncoming vehicle, but he was unable to open the door in timebecause it was "poorly maintained" and "unreasonably difficult to open."
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should "acceptthe facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Vitarelle v Vitarelle, 65 AD3d1034 [2009]). Applying this standard, the plaintiffs have failed to set forth a cognizablecause of action to recover damages for negligence against Drenis.
The elements of a common-law negligence cause of action are a duty owed by the defendantto the plaintiff, a breach of that duty, and an injury proximately resulting therefrom (seePrescott v Newsday, Inc., 150 AD2d 541, 542 [1989]). Here, the plaintiffs failed tosufficiently allege any valid basis for the imposition of a duty of care on behalf of Drenis tosafeguard against the risk that a car would mount the sidewalk and strike a pedestrian (cf. Rodriguez v Hernandez, 37 AD3d809, 810 [2007]; Grandy v Bavaro, 134 AD2d 957, 958 [1987]).[*2]
Accordingly, the Supreme Court should have grantedDrenis's motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and any cross claimsinsofar as asserted against it. Mastro, J.P., Skelos, Leventhal and Roman, JJ., concur.