Zarzona v. City of New York
| Decision Date | 31 October 1994 |
| Parties | Lilia Cortes ZARZONA, Respondent, v. CITY OF NEW YORK, Respondent, John Pitera, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Stern, King, Hoey, Toker & Levine, New York City (Harold Kenneth King, Jr., and Nancy Ravitz, of counsel), for appellant.
Paul A. Crotty, Corp. Counsel, New York City (Elizabeth S. Narella and John Hogrogian, of counsel), for respondent City of New York.
Before SULLIVAN, J.P., and ROSENBLATT, ALTMAN, HART and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendant John Pitera appeals from an order of the Supreme Court, Kings County (Jackson, J.), entered February 4, 1993, which denied, without prejudice, his motion for summary judgment with leave to renew it after the completion of discovery.
ORDERED that the order is reversed on the law, with costs, appellant's motion for summary judgment is granted, and the complaint and any cross-claims are dismissed insofar as they are asserted against him.
The respondents' opposition to the appellant's motion for summary judgment was based on the mere hope that discovery would uncover evidence that the alleged defect, an elevation in the sidewalk, was caused by actions taken by the abutting landowner, the appellant, as opposed to the normal growth of an adjacent tree (see, Zizzo v. City of New York, 176 A.D.2d 722, 574 N.Y.S.2d 966; Kennerly v. Campbell Chain Co., Campbell Chain Div. McGraw-Edison Co., 133 A.D.2d 669, 519 N.Y.S.2d 839). The respondents, therefore, failed to provide a basis, pursuant to CPLR 3212(f), for postponing a decision on the appellant's summary judgment motion (see, Sarver v. Martyn, 161 A.D.2d 623, 555 N.Y.S.2d 402).
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