Defendant Meyer Contracting Corporation moves for an order, pursuant to CPLR 3211(a)(7), dismissing plaintiffs' complaint. In the alternative, movant seeks an order, [*2]pursuant to CPLR 3211(c) and CPLR 3212, treating the instant motion as one for summary judgment and dismissing plaintiffs' claims.

The following papers were read:

Notice of Motion-Affirmation-Exhibits A-G-1-10

Affidavit of Service

Memorandum of Law-Affidavit of Service11-12

Affirmation in Opposition-Exhibits A-B13-15

Reply Affirmation-Exhibit A-Affidavit of Service16-18

Upon the foregoing papers, the motion is decided as follows:

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (see Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v. City of New York, 9 NY3d 825 [2007]). Whether plaintiffs can ultimately establish their allegations is not part of the calculus (see EBC I v. Goldman, Sachs & Co., 5 NY3d 11 [2005]).

Here the facts as alleged in the complaint clearly set forth a cognizable legal theory as against the movant, i.e. that Meyer Contracting Corporation was negligent in failing to notify Avon Grove Properties of the hazardous sidewalk and it was also negligent in failing to inspect, maintain and repair said sidewalk. However, this Court will treat the Meyer Contracting Corporation's motion as one for summary judgment pursuant to CPLR 3211(c) as the parties have charted a summary judgment course by submitting factual affidavits laying bare their proof (see Tendler v. Bais Knesses of New Hempstead, Inc., 52 AD3d 500 [2nd Dept 2008]).

On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering [*3]sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Defendant Meyer Contracting Corporation establishes, through the affidavit of Christian Meyer (President of Meyer Contracting Corporation), its prima facie entitlement to judgment as a matter of law by establishing that it did not own, occupy, manage or control the property located at 7 Pine Woods Road, Hyde Park, New York on July 19, 2011 (see Figueroa-Corser v. Town of Cortlandt, 107 AD3d 755 [2nd Dept 2013] leave to appeal dismissed by 2014 NY Slip Op 61583; Bruhns v. Antonelli, 255 AD2d 478 [2nd Dept 1998]). Moreover, the affidavit also establishes that Meyer Contracting Corporation did not employ any individuals or agents to manage or inspect/repair the property on its behalf.

In opposition to the motion, plaintiffs offer the affidavit of plaintiff Gerald Reynolds, who indicates that a phlebotomist (a person trained to draw blood) at Quest Diagnostics indicated that Meyer Contracting was the property manager of Pine Woods Professional (7 Pine Woods Road, Hyde Park, New York). This alleged statement to Mr. Reynolds constitutes inadmissable hearsay and is insufficient to raise an issue of fact (see Shilkoff v. Longhitano, 94 AD3d 974 [2nd Dept 2012]). Additionally, it is noted that defendant Avon Grove Properties admits ownership of the property. Plaintiffs' counsel's speculation that the two defendants are inter-related is similarly insufficient to raise an issue of fact.

Based upon the foregoing, defendant Meyer Contracting Corporation's motion is granted and plaintiffs' complaint is dismissed as to it.

A further status conference in this matter is be held on May 6, 2014 at 10:00 a.m. Adjournments are only granted with leave of Court.

The foregoing constitutes the decision and order of this Court.

Dated:March 4, 2014 [*4]

Poughkeepsie, New York

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HON. JAMES D. PAGONES, A.J.S.C.