Opinion
289 CA 22-00109
06-30-2023
Henry THOROYAN, Plaintiff-Appellant, v. Alex PALUMBO, et al., Defendants, and Village of Frankfort Power and Light, Defendant-Respondent. (Appeal No. 1.)
RALPH W. FUSCO, UTICA, FOR PLAINTIFF-APPELLANT. GERBER CIANO KELLY BRADY LLP, GARDEN CITY (BRENDAN T. FITZPATRICK OF COUNSEL), FOR DEFENDANT-RESPONDENT.
RALPH W. FUSCO, UTICA, FOR PLAINTIFF-APPELLANT.
GERBER CIANO KELLY BRADY LLP, GARDEN CITY (BRENDAN T. FITZPATRICK OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this negligence action seeking to recover damages for injuries he sustained when he tripped on a grounding rod and attached wire, which were located in the parking lot of his apartment building and concealed at the time of the accident by snow. In appeal No. 1, plaintiff appeals from an order granting the motion of defendant Village of Frankfort Power and Light seeking, inter alia, summary judgment dismissing the amended complaint against it. In appeal No. 2, plaintiff appeals from an order granting the motion of defendant Verizon New York, Inc. seeking, inter alia, summary judgment dismissing the amended complaint against it. We affirm in both appeals.
The proponent of a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). " ‘Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises ... The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property’ " ( Clifford v. Woodlawn Volunteer Fire Co. , Inc. , 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715 [4th Dept. 2006] ; see Knight v. Realty USA.com , Inc. , 96 A.D.3d 1443, 1444, 947 N.Y.S.2d 693 [4th Dept. 2012] ). With respect to both appeals, defendants met their initial burdens on their respective motions insofar as they sought summary judgment dismissing the amended complaint against them by establishing that none of those elements was present (see Beck v. City of Niagara Falls , 202 A.D.3d 1463, 1464, 158 N.Y.S.3d 919 [4th Dept. 2022] ). In opposition, plaintiff failed to raise a triable issue of fact (see generally Alvarez , 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
We have considered plaintiff's remaining contentions in both appeals, and we conclude that they do not require reversal or modification of the orders.