Roberto Rest. Inc. v. City of New York ( 2023 )

Roberto Rest. Inc. v City of New York (2023 NY Slip Op 01875)

Roberto Rest. Inc. v City of New York

2023 NY Slip Op 01875

Decided on April 11, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 11, 2023
Before: Webber, J.P., Oing, Singh, González, Mendez, JJ.

Index No. 32322/20E Appeal No. 2-2A Case No. 2022-02589

[*1]Roberto Restaurant Inc. et al., Plaintiffs-Appellants,

v

The City of New York, et al., Defendants-Respondents.

Joseph A. Faraldo, Kew Gardens, for appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Josh Liebman of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about October 13, 2022, which granted plaintiffs' motion for leave to reargue and, upon reargument, denied plaintiffs' motion for summary judgment as to liability with leave to renew at the conclusion of discovery, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about March 10, 2022, unanimously dismissed, without costs, as superseded by the appeal from the order granting reargument.

The court properly denied as premature plaintiffs' motion for partial summary judgment (see CPLR 3212[f]). Plaintiffs' proof was insufficient to establish as a matter of law that the water leak resulting in damages to plaintiffs' restaurant was caused by the City defendants' negligence in maintaining the City water main (see De Witt Props. v City of New York , 44 NY2d 417, 427 [1978]). Defendants demonstrated that further discovery was necessary to explore, among other things, plaintiffs' unexamined claims that a City inspector had confirmed that the leak originated from the City main as opposed to plaintiffs' water service line, that the City had exclusive control of the City main, and that the City main leak was attributable to the City's negligence.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 11, 2023