Blech v. W. Park Presbyterian Church

• Decision Date: 10 July 2012
• Citation: 97 A.D.3d 443,2012 N.Y. Slip Op. 05481,948 N.Y.S.2d 273
• Parties: Elaine BLECH, et al., Plaintiffs–Respondents, v. WEST PARK PRESBYTERIAN CHURCH, et al., Defendants, Monadnock Construction, Inc., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 443

948 N.Y.S.2d 273

2012 N.Y. Slip Op. 05481

Elaine BLECH, et al., Plaintiffs–Respondents,

v. WEST PARK PRESBYTERIAN CHURCH, et al., Defendants,Monadnock Construction, Inc., et al., Defendants–Appellants.

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

July 10, 2012.

Mound, Cotton Wollan & Greengrass, New York (Steven A. Torrini of counsel), for Monadnock Construction, Inc., appellant.

Smith Mazure, Director, Wilkins, Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for Richmond Housing Resources, LLC, appellant.

Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for respondent.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RICHTER, MANZANET–DANIELS, JJ.

Orders, Supreme Court, New York County (Joan M. Kenney, J.), entered January 28, 2011, which denied defendants Richmond Housing Resources, LLC's and Monadnock Construction, Inc.'s motions to dismiss the complaint as against them pursuant to CPLR 3211 and 3212, and CPLR 3212, respectively, unanimously affirmed, without costs. Order, same court and Justice, entered on or about September 23, 2011, which, upon reargument, denied the part of Richmond's motion that sought to dismiss pursuant to CPLR 3212, unanimously reversed, on the law, without costs, and the motion granted. Order, same court and Justice, entered September 23, 2011, which, to the extent appealable, denied Monadnock's motion to renew its motion for summary judgment, unanimously affirmed, without costs. Order, same court and Justice, entered October 12, 2011, which denied Monadnock's second motion for summary judgment dismissing the complaint and all cross claims against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendants' initial motions for summary judgment were premature, since the matter was in the early stages of discovery, and depositions had not yet been taken ( seeCPLR 3212[f]; Tucker v. New York City Tr. Auth., 42 A.D.3d 316, 839 N.Y.S.2d 487 [2007];Gonzalez v. Vincent James Mgt. Co., 306 A.D.2d 226, 761 N.Y.S.2d 227 [2003] ). The motion court erred in denying Richmond's motion to reargue on the grounds that, inter alia, discovery “had not yet begun.” At the time of Richmond's motion to reargue, virtually all discovery had concluded, including the depositions of all of the parties. The motion court also erred when it found that the motion to reargue was untimely. The record reveals that the motion was served within 30 days from service of the underlying order with notice of entry (CPLR 2221[d] [3] ). Finally, while the court addressed Richmond's CPLR 3211 motion in its original decision, it failed to address the merits of the 3212 motion.

We find that Richmond made out its prima facie entitlement to summary judgment. Richmond put forth evidence that it did not own the property adjacent to the sidewalk defect, performed no construction at the property, did not contract for or erect the sidewalk bridge on the property, or create the condition complained of. In response, plaintiffs failed to either refute Richmond's contentions or identify any contractual...