FISHER v. Lawrence Pinner, respondent. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias–Colón, J.), dated February 28, 2024.  The order, insofar as appealed from, granted that branch of the motion of the defendant Lawrence Pinner which was for summary judgment dismissing the complaint insofar as asserted against him.

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

On November 9, 2020, the plaintiff allegedly was injured when she tripped and fell on a raised object on a sidewalk abutting certain premises located in Brooklyn where construction was taking place.  In June 2021, the plaintiff commenced this action to recover damages for personal injuries against, among others, the defendant Lawrence Pinner (hereinafter the defendant), the managing member of nonparty Pinner Architecture, PLLC, which had contracted to provide architectural services for the construction of a building on the premises adjacent to the sidewalk where the accident occurred.  Thereafter, the defendant moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him.  In an order dated February 28, 2024, the Supreme Court, among other things, granted that branch of the defendant's motion.  The plaintiff appeals.

“ ‘As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property’ ” (Acevedo v. Hope Gardens I, LLC, 226 A.D.3d 732, 733, 209 N.Y.S.3d 95, quoting Wilson v. Rye Family Realty, LLC, 218 A.D.3d 836, 837, 193 N.Y.S.3d 274).  “ ‘Liability may also be imposed upon a party who creates a defective condition’ ” (id., quoting Engelman v. County of Suffolk, 214 A.D.3d 769, 770, 183 N.Y.S.3d 752).

Here, the defendant established, prima facie, that he did not own, occupy, control, or put to a special use the sidewalk where the accident occurred, that he had no duty to maintain that sidewalk, and that he did not create the alleged dangerous condition (see Engelman v. County of Suffolk, 214 A.D.3d at 770, 183 N.Y.S.3d 752;  Hanus v. Long Is. Rail Rd., 186 A.D.3d 679, 681, 129 N.Y.S.3d 466).  In opposition, the plaintiff failed to raise a triable issue of fact.

Contrary to the plaintiff's contention, the defendant'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’ ” (Carmona v. Preston, 231 A.D.3d 703, 704, 217 N.Y.S.3d 657 [internal quotation marks omitted], quoting Branach v. Belvedere VIII, LLC, 189 A.D.3d 1532, 1533, 135 N.Y.S.3d 299).  Here, the plaintiff failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the defendant's knowledge or control (see Walker v. City of Newburgh, 222 A.D.3d 809, 810, 202 N.Y.S.3d 238;  McCalla v. Piris–Fraser, 221 A.D.3d 800, 802, 200 N.Y.S.3d 69).

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

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him.

CHAMBERS, J.P., WOOTEN, WARHIT and LANDICINO, JJ., concur.