GUZOV v. MANOR LODGE HOLDING CORP (2004)

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated June 26, 2003, and the defendant Manor Lodge Holding Corp. cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion, in effect, for summary judgment dismissing the complaint insofar as asserted against it and granted the plaintiff's motion for leave to amend the complaint.

ORDERED that the appeal by the plaintiff is dismissed as abandoned (see 22 NYCRR 670.8[c], [e] );  and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, the motion is denied, the cross motion is granted, and the complaint is dismissed insofar as asserted against the defendant Manor Lodge Holding Corp., and the action against the remaining defendants is severed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Manor Lodge Holding Corp., payable by the plaintiff.

 The post-answer cross motion, in effect, for summary judgment pursuant to CPLR 3212 by the defendant Manor Lodge Holding Corp. (hereinafter Manor) was mislabeled as one for dismissal pursuant to CPLR 3211.   Nevertheless, the papers in support of the cross motion clearly placed the plaintiff on notice that Manor was moving for summary judgment to dismiss the complaint insofar as asserted against it on the ground that documentary evidence established that there were no triable issues of fact (cf. Ressis v. Mactye, 98 A.D.2d 836, 470 N.Y.S.2d 502;  De Pan v. First Nat. Bank of Glens Falls, 98 A.D.2d 885, 470 N.Y.S.2d 869). The cross motion relied not only on documentary evidence, but also on an affidavit of Manor's president, who stated that rocks were in the public right-of-way before title to the abutting property was transferred to Manor, that Manor did not own either the rocks or land where the rocks were located, and did not know who placed the rocks in the public right-of-way.   Those allegations, unrebutted by the plaintiff, required the Supreme Court to grant summary judgment dismissing the complaint insofar as asserted against Manor (see Aversano v. City of New York, 265 A.D.2d 437, 696 N.Y.S.2d 233;  see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325-326, 508 N.Y.S.2d 923, 501 N.E.2d 572).

 The law imposes a duty to maintain property free and clear of dangerous or defective conditions only upon those who own, occupy, or control property, or who put the property to a special use or derive a special benefit from it (see e.g. Dugue v. 1818 Newkirk Mgt. Corp., 301 A.D.2d 561, 756 N.Y.S.2d 51;  Minott v. City of New York, 230 A.D.2d 719, 645 N.Y.S.2d 879;  Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 532 N.Y.S.2d 105).   Since it was conclusively established that Manor neither owned, occupied, nor controlled the right-of-way or the rocks which allegedly caused the decedent's injuries and death, liability cannot be imposed upon Manor (see Aversano v. City of New York, supra;  see also Kaufman v. Silver, 90 N.Y.2d 204, 207-209, 659 N.Y.S.2d 250, 681 N.E.2d 417).

 While leave to amend a complaint should be freely given (see CPLR 3025[b] ), a proposed amendment which is utterly lacking in merit should not be permitted (see Curran v. Auto Lab Serv. Ctr., 280 A.D.2d 636, 721 N.Y.S.2d 662;  Hall Signs v. Aries Striping, 236 A.D.2d 513, 654 N.Y.S.2d 621).   The plaintiff's bare legal conclusions and factual allegations which were plainly contradicted by the record were insufficient to sustain the plaintiff's new theory of liability or establish a good-faith basis for the amendment to the complaint (see Mayer v. Sanders, 264 A.D.2d 827, 828, 695 N.Y.S.2d 593;  Curran v. Auto Lab Serv. Ctr., supra).   The plaintiff's suggestion that the rocks were placed in the right-of-way for the purpose of protecting the fencing on the southern boundary of Manor's property was sheer speculation and, as such, insufficient to defeat a motion of summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Assuming that a prior owner of the abutting property placed the rocks in the public right-of-way for what he or she perceived was the benefit of the abutting property, the plaintiff made no showing that Manor knew or should have known that the rocks were so situated for the benefit of the property.   Accordingly, the motion for leave to amend the complaint should not have been granted.