Angelique Sabia-Candero (Associate-New York, NY) and Joseph Laird (Partner-White Plains, NY) successfully moved in Queens County Supreme Court to dismiss the plaintiff’s complaint and the City of New York’s cross-claims against Wilson Elser’s international bank client arising from the plaintiff’s alleged trip and fall on a sidewalk abutting a Queens residential property (the subject premises). At the time of the alleged accident, the subject premises was real estate owned by the bank. The plaintiff commenced the instant lawsuit against the bank, among others, seeking monetary damages for spinal injuries resulting in a two-level cervical discectomy and fusion. Contemporaneously, in a separate property dispute action involving the subject premises, the Appellate Division, Second Department, reversed the lower court’s decision declining an order to show cause seeking to vacate the judgment of foreclosure and sale, which the court found was improperly issued to our bank client during an automatic bankruptcy stay. Resultantly, an order was issued vacating the judgment of foreclosure and sale, which was rendered void ab initio.

Before conducting party depositions, Angelique and Joe filed a motion to dismiss pursuant to CPLR 3211(a)(1) and 3211(a)(7). They annexed the court orders issued in the related property dispute as supporting documentary evidence to establish that the bank did not own the subject premises on or prior to the plaintiff’s alleged accident. Additionally, they obtained Google Street View images depicting the sidewalk abutting the premises years before the loss, serving them on the plaintiff pursuant to a CPLR 4532-b Notice of Intention more than a month before filing the motion. The images were submitted to the court, along with site photographs disclosed by the plaintiff, to establish that the sidewalk remained in the same condition before and after the accident and to rebut the plaintiff’s claim that the bank caused or created the alleged defect. To supplement the documentary evidence tendered, Wilson Elser obtained an affirmation from an employee of a related mortgage corporation confirming that the bank did not own, occupy, or perform repairs at the premises before the accident and that no entity had been retained on the bank’s behalf to perform repairs or construction-related work. Finally, relevant property preservation records were submitted, indicating that the only services performed at the property on behalf of the client were site inspections to determine the property’s occupancy status.

The court granted Wilson Elser’s motion, rejecting the plaintiff’s arguments that the motion was premature and that issues of control and possession remained unresolved despite the ab initio determination.