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Hope or Speculation not Enough to Avoid Summary Judgment (NY)

June 21, 2018

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<p style="text-align: justify;">In <a href=""><i>Brown v City of New York</i></a>, the Appellate Division reserved a Supreme Court decision and corrected an often misapplied legal principle pertaining to summary judgment motion practice when discovery has not yet been completed.<span class="Apple-converted-space"> </span></p>
<p style="text-align: justify;">The plaintiff in <i>Brown</i> allegedly tripped and fell on a defective sidewalk abutting two homes in Brooklyn, NY, and sued the City of New York and both homeowners.<span class="Apple-converted-space">  </span>Defendants Julius Holley and Vanessa Holley owned one of the abutting properties and prior to the close of discovery, the Holleys moved for summary judgment dismissing all claims against them, contending that they did not create the alleged defect or cause it to occur through a special use of the sidewalk. They also argued that they were exempt from liability under the provisions of Administrative Code of the City of New York § 7-210(b), which shifts liability for maintenance of public sidewalks to the City of New York, if the adjacent property is a “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.”</p>
<p style="text-align: justify;">In opposition, the City of New York and the plaintiff argued that the Holleys' motion should be denied because it was premature due to outstanding discovery.<span class="Apple-converted-space">  </span>The Supreme Court agreed and denied the motion.<span class="Apple-converted-space"> </span></p>
<p style="text-align: justify;">On appeal, the Appellate Division found that the Holeys established their prima facie entitled to the protections of the NYC Administrative Code, and that they did not cause or create the condition.<span class="Apple-converted-space">  As to whether the motion was premature, t</span>he Appellate Division cited its long standing principle that “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."  Applying this standard, the court found that the argument that the Holleys' motion was premature because discovery had not taken place was without merit. Also, the decision noted that the plaintiff and the City failed to demonstrate that discovery might lead to relevant evidence as to the alleged liability of the Holleys or that facts essential to justify opposition to the subject motion were exclusively within the knowledge and control of the Holleys.</p>
<p style="text-align: justify;">As such, the trial court decision was reversed and summary judgment was granted to the Holleys.   Thanks to George Parpas for his contribution to this post, and please write to <a href="mailto:">Mike Bono</a> with any questions.</p>


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