Upon the foregoing papers, the motion of the defendant Belmont District Management Association, Inc., (hereinafter, "Belmont") for summary judgment pursuant to CPLR 3212 dismissing the complaint and all cross claims against it, is decided as follows:

Plaintiff Adelaida Belliard seeks damages for personal injuries allegedly sustained on July 10, 2015, when she tripped and fell on or near a tree well on the sidewalk abutting the property known as 663 Crescent Avenue, in Bronx County.

Defendant Belmont is alleged to have failed, among other allegations, to keep the subject sidewalk and/or tree well abutting the property at 663 Crescent Avenue in a reasonably safe condition and failed to repair said dangerous and defective condition.

Belmont argues in its moving papers that it cannot be held liable for the condition of the subject area where the plaintiff allegedly fell, because it neither caused nor created the alleged sidewalk defect, nor did it have a duty to maintain or repair the sidewalk either by statute or contract. In support of its arguments, Belmont relies on the affidavit from its executive director Philip Marino which outlines that Belmont is a non-profit corporation organized to promote the general betterment and improvement of the Belmont District within Bronx County, State of NY. Additionally, the affidavit from Mr. Marino outlines that his organization was not the owner of the property at 663 Crescent Avenue, Bronx, NY and did not have any responsibility to care for and/or maintain the subject sidewalk and/or tree well adjacent to the property; did not have responsibility to cause the sidewalk to be and remain in a cracked and dangerous condition; was not responsible to repair the subject sidewalk and/or tree well; was not negligent in removing trees/tree roots and was not negligent in installing trees at said location.

In further support of the motion for summary judgment to establish that it did not own or have any ownership interest in the premises known as 663 Crescent Avenue, Belmont annexes to its moving papers, the Deed, which identifies the owner of the property at 663 Crescent Avenue is 663 Crescent Avenue LLC.

Defendant, St. Barnabas Hospital (hereinafter, "St. Barnabas") opposes Belmont's motion [*2]for summary judgment as to the cross claims. By way of counsel, St. Barnabas contends that this motion is premature since discovery has not been completed, and pending the deposition of at least the plaintiff, it would be impossible to determine at present what the created condition was or who, if anyone, created or caused to be created the alleged dangerous condition.

Plaintiff opposes the summary judgment motion by proffering an affirmation by its counsel contending that prior to the date of the accident, Belmont conducted a parade and/or street fair on the street and/or sidewalk area at or near the accident location, and installed a tent stake within the tree pit. It is therefore alleged by plaintiff that Belmont is liable for creating the dangerous and defective condition. Plaintiff does not attach any affidavits or other admissible proof to show that Belmont was conducting a street fair or parade on Crescent Avenue at or around the time of plaintiff's accident.

Plaintiff also argues and concurs with St. Barnabas, that the instant motion is premature as relevant and material discovery remains outstanding, including the depositions of all parties as well as paper discovery owed by Belmont that is relevant and material to the issue of creation and notice of the alleged dangerous condition.

In reply, Belmont contends that in opposition to its motion, plaintiff failed to submit any admissible proof to show that it was conducting a street fair or parade on Crescent Avenue on the date of the plaintiff's alleged incident. Mr. Marino, Belmont's executive director, states in his affidavit that Belmont never conducted any such street fair or parade on Crescent Avenue on or before the alleged date of the plaintiff's incident, nor did they place the spike/stake in the alleged area. As such, Belmont argues that there will be no discovery that will raise relevant liability factual issues.

A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept. 2013]).

Here, the defendant Belmont's affidavits established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to establish that it was not liable for the condition of the subject area where the plaintiff allegedly fell (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, both the plaintiff and defendant St. Barnabas, failed to raise a triable issue of fact. The affirmation of plaintiff's attorney, who has no personal knowledge of facts asserted herein, is insufficient to raise a triable issue of fact with respect to Belmont's claimed lack of responsibility or ownership of the area where plaintiff was caused to fall (see Hoffman v Eastern Long Is. Transp. Enter., 266 AD2d 509 [1999]).

The opposing parties likewise failed to demonstrate that the motion was premature. Pursuant to CPLR 3212 (f), the court may deny a motion for summary judgment if "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." The contention that further discovery may yield some evidence of fault on the movant's part is speculative and therefore insufficient to rebut the presumption. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment (see Costaneda v DO & CO New [*3]York Catering, Inc., 144 AD3d 407 [1st Dept 2016]). A litigant seeking to avoid summary judgment on the ground that discovery has not been conducted must provide an evidentiary basis demonstrating that discovery may lead to relevant evidence or that the facts essential to opposing the motion are in the movant's exclusive knowledge and control (see CPLR 3212 [f]; Medina v Rodriguez, 92 AD3d 850, 851 [2012]; Hill v Ackall, 71 AD3d 829, 830 [2010]). The plaintiff and St. Barnabas made no such showing.

Accordingly, it is hereby

ORDERED that defendant Belmont's motion for summary judgment is granted. The complaint and all cross claims against them are dismissed.

This is the Decision and Order of the Court.