Opinion
Index No. 500226/2020 Sequence No. 1
08-13-2020
TERESA JETTELSON Plaintiff, v. COUNTY OF PUTNAM and CARMEL CENTRAL SCHOOL DISTRICT Defendants.
Unpublished Opinion
DECISION & ORDER
CAPONE, J.S.C.
Upon the foregoing papers, numbered 1-10, read and considered on the motion to dismiss of the defendant the County of Putnam, the papers filed in opposition thereto, and in reply, the motion is decided as follows:
| PAPERS | NUMBERED |
| Notice of Motion/Attorney Affirmation/ Exhibits | A-F 1-8 |
| Plaintiff's Attorney Affirmation in Opposition |
|
| Reply |
|
This is an action to recover damages for personal injuries sustained by the plaintiff when she allegedly tripped and fell on a "dangerous, uneven, condition" on the baseball field located at the George Fischer Middle School (NYSCEF Doc. 1, pg. 2). The complaint alleges that the defendants were responsible for the "maintenance, construction, design, control, upkeep and repair" of the field.
"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff" (Alvino v Lin, 300 A.D.2d 421, 421 [2d Dept 2002]; see Han Hao Huang v Doe, 169 A.D.3d 1014, 1015 [2d Dept 2019]). If there is no duty of care owed by the defendant to the plaintiff, there can be no breach and, consequently, no liability can be imposed upon the defendant (see Han Hao Huang v Doe, 169 A.D.3d at 1015). "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 [2d Dept 2017]). "The existence of one or more of these elements is sufficient to give rise to a duty of care. [...] Where none is present, [generally] a party cannot be held liable for injuries caused by the [allegedly] defective condition" (Donatien v Long Is. Coll. Hosp., 153 A.D.3d at 601 [citation and internal quotation marks omitted]; see Umanskaya v 4050 Nostrand Avenue Condominium, 173 A.D.3d 812, 813 [2d Dept 2019]).
The defendant the County of Putnam has moved for summary judgment, dismissing the complaint and all cross-claims insofar as asserted against it, on the ground that it owed no duty of care to the plaintiff because the County did not own, operate, control, manage, maintain, or use the property on which the accident allegedly occurred and, thus, could not be held liable for the plaintiff's alleged injuries. In support of the motion, the County submitted a copy of a deed showing that the County is not the owner of the property at issue (NYSCEF Doc. 16). The County also submitted an affidavit of Lisa Johnson, the Putnam County Director of Real Property (NYSCEF Doc. 14) and an affidavit of Fred Pena, the Commissioner of the Putnam County Department of Highways and Facilities (NYSCEF Doc. 15). Ms Johnson affirmed that, in her capacity as Director of Real Property, she maintains the records which identify the owners of all properties in Putnam County and she further affirmed that the County of Putnam does not own any property at the George Fischer Middle School, including the baseball field, nor had the County ever owned that property. Mr. Pena affirmed that, in his capacity as Commissioner of the Putnam County Department of Highways and Facilities, he was aware of all maintenance, construction, design, upkeep and repair work done by Putnam County. He further affirmed that the County did not operate, control or manage any property located that the George Fischer Middle School, including the baseball fields, and was not responsible for the maintenance, construction, design, control, upkeep and/or repair of any property at the George Fischer Middle School, including the baseball fields. Finally, he affirmed that the County had never performed any maintenance, construction, design, upkeep and/or repair of any property at the George Fischer Middle School, including the baseball fields, nor had the County ever hired anyone to do so.
These submissions were sufficient to meet the County's burden of demonstrating its prima facie entitlement to summary judgment dismissing the complaint and all cross claims insofar as asserted against it by establishing that it owed no duty directly to the plaintiff, and that it did not create or exacerbate the alleged dangerous condition on the subject premises (see Duncan v 112 Atlantic Realty, LLC, 163 A.D.3d 769, 770 [2d Dept 2018]; Petry v Hudson Val. Pavement, Inc., 78 A.D.3d 1145, 1146-1147 [2d Dept 2010]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's contention that the County's summary judgment motion is premature is without merit. Pursuant to CPLR 3212(f), the court may deny a motion for summary judgment if "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." It is incumbent upon the opposing party to provide an evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party (see Suero-Sosa v Cardona, 112 A.D.3d 706, 707-708 [2d Dept 2013]; see also Ulloa v Incorp. Vil of Freeport, 184 A.D.3d 762, 764 [2d Dept 2020]; Umanskaya v 4050 Nostrand Avenue Condominium, 173 A.D.3d at 813-814).
The plaintiff's contentions, supported only by her attorney's affirmation, that the motion must be denied because discovery has not yet been conducted into the question of permits and/or inspections of the field at issue, is without merit and not likely to lead to relevant evidence warranting denial of the County's motion. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion (see Suero-Sosa v Cardona, 112 A.D.3d at 708 [internal quotations and citations omitted]; see also Bartlett v City of New York, 169 ad3d 629, 630 [2d Dept 2019]; O'Toole v Vollmer, 130 A.D.3d 597, 598 [2d Dept 2015]; Reynolds v Avon Grove Properties, 129 A.D.3d 932, 933 [2d Dept 2015]). Accordingly, it is hereby
ORDERED that the County of Putnam's motion for summary judgment dismissing the complaint and any cross-claims insofar as asserted against it is granted; and it is further
ORDERED that the parties are directed to appear virtually before the Court on September 11, 2020, at 11:30am for a Preliminary Conference.
The foregoing constitutes the Order of the Court.