        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

244
CA 11-02074
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


KIM M. BRADY, PLAINTIFF,

                    V                              MEMORANDUM AND ORDER

PAT CASILIO, ROSEMARY CASILIO, CASILIO REAL
ESTATE & DEVELOPMENT CORPORATION, DELAWARE
NASH BUILDING, LLC, NORTHWEST BANKCORP MHC,
DEFENDANTS-APPELLANTS,
HUNT & ASSOCIATES 2021, LLC, JJJJJ &
ASSOCIATES, LLC, AND M.J. MANZELLA & ASSOCIATES,
LLC, DEFENDANTS-RESPONDENTS.


SUGARMAN LAW FIRM LLP, SYRACUSE (MICHAEL A. RIEHLER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS PAT CASILIO, ROSEMARY CASILIO, CASILIO REAL
ESTATE & DEVELOPMENT CORPORATION, AND DELAWARE NASH BUILDING, LLC.

THE LAW OFFICE OF EDWARD M. EUSTACE, WHITE PLAINS (CHRISTOPHER M.
YAPCHANYK OF COUNSEL), FOR DEFENDANT-APPELLANT NORTHWEST BANKCORP MHC.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NEIL A. PAWLOWSKI OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeals from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered July 14, 2011 in a personal injury action. The
order denied the motion of defendants Pat Casilio, Rosemary Casilio,
Casilio Real Estate & Development Corporation, and Delaware Nash
Building, LLC, and the cross motion of defendant Northwest Bankcorp
MHC for summary judgment dismissing the complaint and cross claims.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion and cross
motion are granted and the complaint and all cross claims against
defendants Pat Casilio, Rosemary Casilio, Casilio Real Estate &
Development Corporation, Delaware Nash Building, LLC and Northwest
Bankcorp MHC are dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she slipped and fell in a parking lot.
Defendants Pat Casilio, Rosemary Casilio, Casilio Real Estate &
Development Corporation and Delaware Nash Building, LLC (collectively,
Casilio defendants) moved for summary judgment dismissing the
complaint and all cross claims against them, and defendant Northwest
Bankcorp MHC (Northwest) cross-moved for the same relief. We agree
with the Casilio defendants and Northwest that Supreme Court erred in
                                 -2-                           244
                                                         CA 11-02074

denying their motion and cross motion, respectively, and we therefore
reverse.

     According to plaintiff, she fell on the premises at 2987 Delaware
Avenue in Kenmore, New York. Defendants Hunt & Associates 2021 LLC,
JJJJJ & Associates, LLC and M.J. Manzella & Associates, LLC
(collectively, Hunt defendants) admitted in their answer that they
owned that property. The Casilio defendants moved and Northwest
cross-moved for summary judgment on the ground that they did not own
or control the premises upon which the accident allegedly occurred.
In support of the motion and cross motion, they submitted the
pleadings and the deposition testimony of plaintiff, in which she
testified that she slipped and fell in a parking lot, as well as the
photograph exhibit from that deposition, which established that the
parking lot is adjacent to the property owned or leased by the Casilio
defendants and Northwest. We therefore conclude that those defendants
met their initial burden by submitting admissible evidence
establishing that they did not own the property where the accident
occurred (see Biggs v Hess, 85 AD3d 1675, 1675-1676).

     In opposition to the motion and the cross motion, the Hunt
defendants failed to raise a triable issue of fact whether the Casilio
defendants and Northwest owned the property in question. Contrary to
the contention of the Hunt defendants, the police accident report and
the deposition testimony of the officer who filled it out are
insufficient to raise a triable issue of fact. The officer did not
observe the accident, and his testimony repeating plaintiff’s
statements constitutes hearsay (see generally Quinones v New England
Motor Frgt. Inc., 80 AD3d 514, 515; Christopher v Coach Leasing, Inc.,
66 AD3d 1522, 1523). Furthermore, even assuming, arguendo, that the
testimony and report would be admissible evidence, we conclude that
they fail to establish that plaintiff contradicted her deposition
testimony regarding the location of the accident.




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
