Arreaga v. 112 Dyckman Rest. Inc.

• Citation: 143 A.D.3d 646,2016 N.Y. Slip Op. 07088,39 N.Y.S.3d 774 (Mem)
• Parties: Emmanuel ARREAGA, Plaintiff–Respondent, v. 112 DYCKMAN RESTAURANT INC., et al., Defendants, 114–118 Dyckman Realty LLC, Defendant–Appellant.
• Decision Date: 27 October 2016
• Court: New York Supreme Court Appellate Division

143 A.D.3d 646

39 N.Y.S.3d 774 (Mem)

2016 N.Y. Slip Op. 07088

Emmanuel ARREAGA, Plaintiff–Respondent,

v.112 DYCKMAN RESTAURANT INC., et al., Defendants,114–118 Dyckman Realty LLC, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Oct. 27, 2016.

Newman Myers Kreines Gross Harris, P.C., New York (Olivia M. Gross of counsel), for appellant.

Kreiger, Wilansky & Hupart, Bronx (Matthew H. Mishkin of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 25, 2016, which, inter alia, denied defendant-appellant's motion for summary judgment dismissing the complaint as against it as premature, and prospectively denied its motion for leave to renew at the conclusion of discovery, unanimously reversed, on the law and the facts, without costs, and summary judgment dismissing the complaint against defendant-appellant (defendant) granted. The Clerk is directed to enter judgment accordingly.

Defendant, an out of possession landlord, presented prima facie evidence establishing a meritorious defense—that it did not control the restaurant where plaintiff was injured and had no knowledge of or opportunity to supervise the intoxicated patrons that allegedly assaulted plaintiff (see D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 [1987]

; McGlynn v. St. Andrew Apostle Church, 304 A.D.2d 372, 761 N.Y.S.2d 151 [1st Dept.2003], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477 [2003] ). The affidavit of defendant's property manager indicated, inter alia, that defendant had no employees on the premises at the time of the incident and no information concerning it prior to service of the complaint. Plaintiff failed to raise any disputed material issue of fact in opposition to summary judgment, nor did he show that discovery was necessary to oppose the motion.

FRIEDMAN

, J.P., ANDRIAS, MOSKOWITZ, GISCHE, GESMER, JJ., concur.