Kelley Kronenberg Associate Amanda Rosenberg, in collaboration with Partner Jesse Siegel, secured a motion to dismiss for their supermarket client in a Queens County premises liability case after proving the client had no connection to the accident location. 

The plaintiff claimed she was injured in April 2023 when a speaker fell and struck her while shopping at a supermarket in Jackson Heights. She sued two defendants with similar names. One was the actual tenant and operator of the premises. The other was Amanda’s client, an unrelated supermarket located miles away in Ozone Park. 

Amanda moved to dismiss under CPLR §§ 3211(a)(1) and (a)(7), arguing the complaint failed to state a cause of action because her client was neither the owner nor tenant of the premises where the accident occurred. 

The documentary evidence was clear. The co-defendant had produced a lease in discovery showing it was the tenant of the accident location. The co-defendant also admitted in its verified answer that it operated the premises on the date of the incident. A corporate search confirmed the two supermarkets had different addresses and were separate entities. Amanda also submitted a sworn affidavit from her client’s store manager confirming the company had never owned, leased, or had any affiliation with the accident location. 

The plaintiff opposed the motion, arguing it was premature and that the lease was unauthenticated. The court rejected both arguments. It found the motion was not premature because the plaintiff failed to demonstrate that further discovery might lead to relevant evidence. It also found the lease admissible under CPLR 4540-a, which presumes documents produced in discovery by a party are authentic when offered by an adverse party. 

The Court granted the motion and dismissed the complaint against Amanda’s client for failure to state a cause of action. 

This case illustrates the value of a pre-answer motion to dismiss when a party clearly does not belong in the case.  By assembling documentary proof and swiftly moving to dismiss prior to entering the case, the client was extricated from the matter at an early stage, saving both time as well as litigation costs. 

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