Mallgraf v. City of New York

In an action to recover damages for personal injuries, etc., the defendants Herbert Walker and Mary Walker appeal from so much of an order of the Supreme Court, Kings County (Bernstein, J.), dated August 28, 1989, as denied their motion to dismiss the plaintiffs’ cause of action based on General Municipal Law § 205-a. Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the motion of the defendants Herbert Walker and Mary Walker to dismiss the cause of action based on General Municipal Law § 205-a is granted, the complaint is dismissed insofar as it is asserted against them, and the action against the remaining defendant is severed. The evidence submitted in support of the motion for summary judgment established that the plaintiffs did not have a viable cause of action against the defendants Herbert Walker and Mary Walker based on General Municipal Law § 205-a (see, Kenavan v City of New York, 70 NY2d 558; Rogan v Giannotto, 151 AD2d 655). Consequently, the complaint should have been dismissed insofar as it is asserted against them. We note that the plaintiffs, in their brief on appeal, acknowledge that discovery proceedings have failed to reveal evidence which would support a cause of action under this statute. Bracken, J. P., Lawrence, Eiber, Harwood and Rosenblatt, JJ., concur.