Fung v. Exxon Mobil Oil Corp.

Fung v Exxon Mobil Oil Corp. 2026 NY Slip Op 05937 October 14, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Clement Fung, appellant, v Exxon Mobil Oil Corporation, et al., defendants, Bolla Em Realty, LLC, respondent. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026 2025-04702, (Index No. 517493/19) Mark C. Dillon, J.P. Paul Wooten Lourdes M. Ventura Lisa S. Ottley, JJ. Blumen & Shayne, PLLC (Law Office of Arnold E. DiJoseph, P.C., New York, NY [Arnold E. DiJoseph III], of counsel), for appellant. O'Connor Redd Orlando LLP, Port Chester, NY (Peter Urreta of counsel), for respondent. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lisa Lewis, J.), dated March 28, 2025. The order, insofar as appealed from, granted that branch of the motion of the defendant Bolla Em Realty, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action against, among others, the defendant Bolla Em Realty, LLC (hereinafter Bolla), to recover damages for personal injuries that the plaintiff allegedly sustained when he was walking on a sidewalk abutting Bolla's premises and his left foot caught on a fire hydrant base, causing him to fall. Bolla moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, arguing, among other things, that the fire hydrant was under the control of the defendant City of New York. In an order dated March 28, 2025, the Supreme Court, inter alia, granted that branch of Bolla's motion. The plaintiff appeals. Administrative Code of the City of New York § 7-210(b) provides that "[n]otwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury . . . proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." "The statute does not impose strict liability upon the property owner, and a plaintiff must prove the elements of negligence to demonstrate that the property owner is liable" (Cooper v First In Queens, Inc., 229 AD3d 761, 762; see Gomez v NA Broadway Realty, LLC, 242 AD3d 1064, 1064-1065). "[L]iability may be imposed on the abutting landowner where the landowner either affirmatively created the dangerous condition, voluntarily but negligently made repairs to the sidewalk, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance expressly imposing liability on the abutting landowner" (Byrams v Hamilton, 234 AD3d 917, 918 [internal quotation marks omitted]; see La Fleur v Janowitz, 228 AD3d 636, 636; Avagyan v City of New York, 222 AD3d 710, 710-711). Here, Bolla established, prima facie, that the City was responsible for maintaining the fire hydrant that the plaintiff tripped on and that Bolla did not violate a statute that expressly imposed liability on it for a failure to maintain the abutting sidewalk (see Torres v Sander's Furniture, Inc., 134 AD3d 803, 805). Bolla also established, prima facie, that it did not own, control, or make a special use of the fire hydrant, that it had no duty to maintain the fire hydrant, and that it did not create the allegedly dangerous condition that caused the plaintiff's accident (see Fisher v City of New York, 245 AD3d 892, 893). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, that branch of Bolla's motion which was for summary judgment dismissing the complaint insofar as asserted against it was not premature. "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" (Sarceno v Manhattan View, LLC, 230 AD3d 1176, 1177 [internal quotation marks omitted]; see Flores-Da Silva v Long Is. Univ., 243 AD3d 642, 643). Here, the plaintiff failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within Bolla's knowledge or control (see Fisher v City of New York, 245 AD3d at 894). Accordingly, the Supreme Court properly granted that branch of Bolla's motion which was for summary judgment dismissing the complaint insofar as asserted against it. DILLON, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court