ORELLANA v. Bret Bohlman, appellant. (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Bret Bohlman appeals from an order of the Supreme Court, Nassau County (Thomas A. Rademaker, J.), dated March 30, 2022.  The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Bret Bohlman for summary judgment dismissing the complaint insofar as asserted against him is granted.

In September 2019, the plaintiff commenced this action against, among others, the defendant Bret Bohlman (hereinafter the defendant) to recover damages for personal injuries the plaintiff allegedly sustained when he tripped and fell on a metal storm drain abutting the defendant's property.  Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him.  In an order dated March 30, 2022, the Supreme Court denied the motion.  The defendant appeals.

Contrary to the Supreme Court's determination, and as the plaintiff correctly concedes, the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him was timely made (see General Construction Law § 20).

“Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property” (Donatien v. Long Is. Coll. Hosp., 153 A.D.3d 600, 600–601, 57 N.Y.S.3d 422;  see Toner v. Trader Joe's E., Inc., 209 A.D.3d 690, 692, 176 N.Y.S.3d 278).  “In the absence of ownership, occupancy, control, or special use, a party generally ‘cannot be held liable for injuries caused by the dangerous or defective condition of the property’ ” (Bartlett v. City of New York, 169 A.D.3d 629, 630, 91 N.Y.S.3d 718, quoting Ruffino v. New York City Tr. Auth., 55 A.D.3d 819, 820, 865 N.Y.S.2d 674;  see Smith v. 4 Empire Mgt. Group, Inc., 208 A.D.3d 811, 812, 172 N.Y.S.3d 632).

Here, the defendant established, prima facie, that he did not own, occupy, control, or make special use of the metal storm drain on which the plaintiff allegedly tripped and fell (see Engelman v. County of Suffolk, 214 A.D.3d 769, 770, 183 N.Y.S.3d 752;  Dalpiaz v. McGuire, 176 A.D.3d 779, 780, 107 N.Y.S.3d 890;  Breland v. Bayridge Air Rights, Inc., 65 A.D.3d 559, 560, 884 N.Y.S.2d 143).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

In light of our determination, we need not reach the parties’ remaining contentions.

CONNOLLY, J.P., WOOTEN, FORD and VENTURA, JJ., concur.