| Irizarry v Heller |
| 2012 NY Slip Op 03601 [95 AD3d 951] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Neftali Irizarry, Respondent, v Lisa Heller,Appellant. |
—[*1] Litman & Litman, P.C., East Williston, N.Y. (Jeffrey E. Litman of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated July 22, 2011, which denied her motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff alleges that on October 19, 2006, he was injured when he fell through anunguarded hole while performing demolition construction work at premises owned by thedefendant in Brooklyn. The plaintiff commenced the instant action against the defendant,interposing a single cause of action based on common-law negligence in a complaint verified byhis attorney. In the complaint, the address of the premises at which the accident allegedlyoccurred was identified as "398 Clermont Avenue, Brooklyn, New York" (hereinafter theClermont Premises). Thereafter, the plaintiff served a bill of particulars setting forth that theaccident occurred at the premises known as "398 Vermont Avenue, Brooklyn, New York"(hereinafter the Vermont Premises). During his deposition, the plaintiff at first could not recallthe address of the premises where he was injured, but, upon further questioning, testified that hisaccident occurred at the Vermont Premises. At her deposition, the defendant testified, inter alia,that she owned the Clermont Premises, but did not own the Vermont Premises. She furthertestified that she had never been to or known of the Vermont Premises.
After the completion of discovery, the defendant moved for summary judgment dismissingthe complaint, arguing, inter alia, that the plaintiff was not injured at premises owned by thedefendant or, in the alternative, that she had no notice of, nor did she create, the defectivecondition which caused the plaintiff's injury. The plaintiff opposed the motion contending,among other things, that a triable issue of fact existed as to the location of the plaintiff's accident,and that the defendant failed to meet her prima facie burden with regard to notice or the creationof the dangerous condition which caused the plaintiff's injury. The Supreme Court denied thedefendant's motion, finding that triable issues of fact existed. The defendant appeals. We reverse.
"To establish a prima facie case of negligence, a plaintiff must establish the existence of aduty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a [*2]proximate cause of injury to the plaintiff . . .[L]iability for a dangerous condition on property is generally predicated upon ownership,occupancy, control or special use of the property" (Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2005][internal quotation marks and citations omitted]; see Cerrato v Rapistan Demag Corp., 84 AD3d 714, 716 [2011]; Sanchez v 1710 Broadway, Inc., 79AD3d 845, 846 [2010]). "Where none of these factors are present, a party cannot be heldliable for injuries caused by the allegedly defective condition" (Gover v Mastic Beach Prop. OwnersAssn., 57 AD3d 729, 730 [2008]).
The defendant established, prima facie, her entitlement to judgment as a matter of law bysubmitting evidence demonstrating that the accident complained of did not occur at premiseswhich she owned, occupied, controlled, or of which she made special use (see Cerrato v Rapistan Demag Corp.,84 AD3d 714 [2011]; Sanchez v 1710 Broadway, Inc., 79 AD3d at 846; Nappi vIncorporated Vil. of Lynbrook, 19 AD3d at 566), and that, therefore, she owed no duty to theplaintiff.
In opposition, the plaintiff failed to raise a triable issue of fact. The only document wherein itwas contended that the subject accident took place at the Clermont Premises rather than theVermont Premises was the complaint. The complaint was verified by counsel. A "bareallegation" contained in an attorney verified complaint is "patently insufficient" to raise a triableissue of fact (Maresca v Berson, 84 AD2d 760, 761 [1981]; cf. Citibank v Joffe,265 AD2d 291 [1999]). The attorney had no personal knowledge of the facts.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court erred in denying the defendant's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.