CARMONA v. M & D Landscaping and Gardening Corp., respondent. (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), dated July 20, 2022.  The order, insofar as appealed from, granted that branch of the motion of the defendant M & D Landscaping and Gardening Corp. which was for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On November 26, 2016, the plaintiff allegedly was injured when he tripped and fell on a raised concrete block or brick covered by leaves in a certain tree well on Hoover Avenue in Queens.  The plaintiff commenced this action against the defendant City of New York, among others, to recover damages for personal injuries (see Carmona v. Preston, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 4364364 [Appellate Division Docket No. 2022–10436;  decided herewith]).  In an amended complaint, the plaintiff alleged that the defendant M & D Landscaping and Gardening Corp. (hereinafter M & D) had a contract with the City to plant trees on Hoover Avenue pursuant to a permit issued on September 19, 2016.  M & D moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it.  In an order dated July 20, 2022, the Supreme Court, among other things, granted that branch of M & D's motion.  The plaintiff appeals.  We affirm.

“A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition” upon a public street, sidewalk, or tree well (Lewis v. City of New York, 82 A.D.3d 1054, 1055, 919 N.Y.S.2d 351;  see Schaum v. City of New York, 216 A.D.3d 691, 692, 187 N.Y.S.3d 108;  Downing v. J. Anthony Enters., Inc., 189 A.D.3d 1541, 1542, 140 N.Y.S.3d 105).  Here, M & D established, prima facie, that it did not perform any work in the subject tree well or create the alleged defect (see Arena v. City of New York, 192 A.D.3d 737, 737, 139 N.Y.S.3d 890;  Rivera v. City of New York, 171 A.D.3d 962, 962, 95 N.Y.S.3d 885;  Cruz v. Keyspan, 120 A.D.3d 1290, 1291, 992 N.Y.S.2d 549;  Rubina v. City of New York, 51 A.D.3d 761, 762, 857 N.Y.S.2d 713).  In opposition, the plaintiff failed to raise a triable issue of fact (see Garcia v. City of New York, 53 A.D.3d 644, 644, 863 N.Y.S.2d 46).

Contrary to the plaintiff's contention, M & D's motion was not premature.  “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (Branach v. Belvedere VIII, LLC, 189 A.D.3d 1532, 1533, 135 N.Y.S.3d 299 [internal quotation marks omitted];  see Sterling Natl. Bank v. Alan B. Brill, P.C., 186 A.D.3d 515, 518, 129 N.Y.S.3d 151;  Umanskaya v. 4050 Nostrand Ave. Condominium, 173 A.D.3d 812, 813, 102 N.Y.S.3d 243).

Accordingly, the Supreme Court properly granted that branch of M & D's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.

CONNOLLY, J.P., CHAMBERS, GENOVESI and WAN, JJ., concur.