ANGERAME v. James Pace, et al., Appellants. (1998)

In an action to recover damages for personal injuries, the defendants James Pace, Wesley Pace, Dana Fox, and Margaret Fox appeal from so much of an order of the Supreme Court, Suffolk County (Cannavo, J.), dated April 11, 1997, as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the plaintiffs-respondents, the appellants' cross motion for summary judgment is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The plaintiff Marie Angerame contends that she was injured when she fell into a hole located on a grassy strip between the street and the sidewalk in front of premises owned by the appellants.   We conclude that the appellants established their entitlement to summary judgment based on the affidavit of a land surveyor who stated that the subject grassy strip was not within the boundaries of the appellants' property and the deposition testimony of James Pace that the appellants did not maintain the grassy strip (see, Stewart v. Town of Waterford, 152 A.D.2d 837, 543 N.Y.S.2d 770).   The plaintiffs failed to present evidence sufficient to raise a triable issue of fact as to the appellants' ownership or control of the grassy strip (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

MEMORANDUM BY THE COURT.