| Oxman v Mountain Lake Camp Resort Inc. |
| 2013 NY Slip Op 02842 [105 AD3d 653] |
| April 25, 2013 |
| Appellate Division, First Department |
| Tatyana Oxman, Appellant, v Mountain LakeCamp Resort Inc. et al., Defendants/Third-Party Plaintiffs-Respondents. Ulster HeightsLake, Inc., et al., Third-Party Defendants-Respondents. |
—[*1] Pillinger Miller Tarallo, LLP, Elmsford (Leslie G. Abele of counsel), for MountainLake Camp Resort Inc. and Richard Parzoch, respondents. Milber, Makris, Plousadis & Seiden, LLP, Woodbury (Samantha B. Lansky ofcounsel), for Ulster Heights Lake, Inc., respondent. Schondebare & Korcz, Ronkonkoma (Christopher L. Grayson of counsel), for NinaZilberman and Alexander Senderovich, respondents.
Order, Supreme Court, New York County (Martin Shulman, J.), entered May 6,2011, which, to the extent appealed from, upon renewal, granted defendants' motion forsummary judgment dismissing the complaint, and denied plaintiff's motion for recusal,unanimously affirmed, without costs.
In support of their motion for renewal, defendants submitted third-party defendantUlster Heights Lake, Inc.'s answer to the third-party complaint, in which the lakefronthomeowner's association admitted that it owned the beach property where plaintiff felland was injured. This new fact was not offered on the prior motion because UlsterHeights did not serve its answer until after the court's prior determination was issued(see CPLR 2221 [e]).
The fact that Ulster Heights, and not defendants, owned the beach, coupled with thetestimony of defendant Parzoch, the owner of defendant Mountain Lake Camp ResortInc., that Ulster Heights managed the lake and controlled access to it, that he did notmaintain, manage or inspect the beach, that he had no obligation to do so, and thatMountain Lake never told its guests that it maintained the beach, establishes prima faciethat defendants had no duty to plaintiff to maintain the beach (see Lopez v Allied AmusementShows, Inc., 83 AD3d 519 [1st Dept 2011]). In any event, there is no evidencethat defendants created the condition complained of or had [*2]notice of it, and no evidence, contrary to plaintiff'scontention, that the condition resulted from any negligence on their part in maintainingthe beach gratuitously (see Darby v Compagnie Natl. Air France, 96 NY2d 343[2001]; Garner v City of NewYork, 6 AD3d 387 [2d Dept 2004], lv denied 3 NY3d 609 [2004]).
In opposition, plaintiff failed to raise a triable issue whether defendants either ownedor had a possessory interest in the beach, or had assumed a formal obligation to maintainit, or made special use of it (see Poirier v City of Schenectady, 85 NY2d 310,314-315 [1995]).
Nothing in the record suggests that the motion court's "impartiality might reasonablybe questioned" (see 22 NYCRR 100.3 [E] [1]). Plaintiff did not move for recusaluntil after the court had ruled against her (see Glatzer v Bear, Stearns & Co., Inc., 95 AD3d 707 [1stDept 2012]), and the ruling reflects no bias against her (see Matter of Anderson vHarris, 73 AD3d 456, 458 [1st Dept 2010]). We reject plaintiff's complaintsabout the courts actions. Concur—Andrias, J.P., Saxe, DeGrasse, Richter andGische, JJ. [Prior Case History: 2011 NY Slip Op 31205(U).]