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Holz v. Rinacente Properties, Inc.

197 A.D.2d 669 Court N.Y. App. Div. Decision date 1993-10-25 English

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p. 669
Joseph Holz et al., Appellants, v Rinacente Properties, Inc., et al., Respondents.
[602 NYS2d 879]

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Price, J.), dated October 22, 1992, which granted the defendants’ motion, made at the completion of the plaintiffs’ opening statement, to dismiss the complaint.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiffs contend that the trial court erred in dismissing their complaint after the opening statement. We disagree. The trial court correctly dismissed the case after viewing the facts as stated by the plaintiffs as true, after reviewing the pleadings, and after the plaintiffs were given the opportunity

p. 670
to present their offer of proof. It was clear based on the plaintiffs’ submissions that there was no legal basis for them to succeed (see, De Vito v Katsch, 157 AD2d 413 , 416). The accident occurred on a public sidewalk, and there was no offer of proof that the sidewalk was constructed in a special manner for benefit of the defendant landowners (see, Kobet v Consolidated Edison Co., 176 AD2d 785 , 786), and no offer of proof that the defendants created the defective condition (see, Giammarino v Angelo’s Royal Pastry Shop, 168 AD2d 423 , 424). Thompson, J. P., Miller, Lawrence and Copertino, JJ., concur.

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