Semzock v. State, 97 A.D.3d 1012 (N.Y. App. Div. 2012). · Go Syfert
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Semzock v. State, 97 A.D.3d 1012 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
17 citation events (17 in the last 25 years) across 2 distinct courts.
Strongest positive: Schmid v. Town of Ausable (nyappdiv, 2025-07-17)
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Schmid v. Town of Ausable (2×)
N.Y. App. Div. · 2025 · confidence medium
These submissions were sufficient to meet the Beaudettes' initial burden of establishing entitlement to judgment as a matter of law ( see Semzock v State of New York , 97 AD3d 1012, 1013 [3d Dept 2012]; Rodgers v City of New York , 34 AD3d 555, 556 [2d Dept 2006]).
discussed Cited as authority (rule) Please Me, LLC v. State of New York
N.Y. App. Div. · 2023 · confidence medium
Claimant's principal was involved in communications with defendant and necessarily possesses any documentation between the parties as evidenced by his production of numerous emails and texts on this motion ( see Semzock v State of New York , 97 AD3d 1012, 1013 [3d Dept 2012]; Gersten-Hillman Agency, Inc. v Heyman , 68 AD3d 1284, 1288 [3d Dept 2009]).
discussed Cited as authority (rule) Encarnacion v. State of New York
N.Y. App. Div. · 2022 · confidence medium
To the extent that claimant attempts to introduce, in support of his motion for summary judgment, that he was allegedly denied the right to call a witness at the disciplinary hearing, such argument was not included in his summary judgment motion and will not be considered for the first time on appeal ( see Semzock v State of New York , 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) Liere v. State
N.Y. App. Div. · 2014 · confidence medium
To the extent that claimant argues that this matter is properly venued in Suffolk County pursuant to CPLR 503, as it was his place of residency at the time the action was commenced, and pursuant to CPLR 507, because the action allegedly affects the use and enjoyment of his real property in such county, and, alternatively, that the Clerk of the Court of Claims improperly assigned the matter according to court rules (see 22 NYCRR 206.4), such arguments are unpreserved as they are being raised for the first time on appeal (see Semzock v State of New York, 97 AD3d 1012, 1013 [2012]; Matter of LaBa…
discussed Cited as authority (rule) Liere v. State
N.Y. App. Div. · 2014 · confidence medium
To the extent that claimant argues that this matter is properly venued in Suffolk County pursuant to CPLR 503, as it was his place of residency at the time the action was commenced, and pursuant to CPLR 507, because the action allegedly affects the use and enjoyment of his real property in such county, and, alternatively, that the Clerk of the Court of Claims improperly assigned the matter according to court rules (see 22 NYCRR 206.4), such arguments are unpreserved as they are being raised for the first time on appeal (see Semzock v State of New York, 97 AD3d 1012, 1013 [2012]; Matter of LaBa…
discussed Cited as authority (rule) Shirley He v. Realty USA
N.Y. App. Div. · 2014 · confidence medium
Plaintiffs alternative theory of liability — res ipsa loquitur — is raised for the first time on appeal and, as such, is not properly before us (see Semzock v State of New York, 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) Shirley He v. Realty USA
N.Y. App. Div. · 2014 · confidence medium
Plaintiffs alternative theory of liability — res ipsa loquitur — is raised for the first time on appeal and, as such, is not properly before us (see Semzock v State of New York, 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) HevRealtyUSA
N.Y. App. Div. · 2014 · confidence medium
Accordingly, Supreme Court properly dismissed plaintiff's causes of action against defendants upon this ground.3 As for plaintiff's claims against Weiwei Chen and Beirong Fu as purchasers of the Chatsworth residence, we agree that the complaint must be dismissed for failure to state a cause of 3 Plaintiff's alternative theory of liability – res ipsa loquitur – is raised for the first time on appeal and, as such, is not properly before us (see Semzock v State of New York, 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) Baird v. Gormley
N.Y. App. Div. · 2014 · confidence medium
In light of this evidence and absent proof that Bellamy exercised control over the subject manhole around the time of plaintiff’s accident, we conclude that Bellamy met its initial burden of establishing that it was not responsible for the dangerous condition of the manhole (see Semzock v State of New York, 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) Baird v. Gormley
N.Y. App. Div. · 2014 · confidence medium
In light of this evidence and absent proof that Bellamy exercised control over the subject manhole around the time of plaintiff’s accident, we conclude that Bellamy met its initial burden of establishing that it was not responsible for the dangerous condition of the manhole (see Semzock v State of New York, 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) D'Antuono v. Village of Saugerties
N.Y. App. Div. · 2012 · confidence medium
Finally, because plaintiffs failed to demonstrate “that further discovery might reveal material facts that are in defendant’s exclusive possession,” Supreme Court’s grant of summary judgment to the Village was not premature (Semzock v State of New York, 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) D'Antuono v. Village of Saugerties
N.Y. App. Div. · 2012 · confidence medium
Finally, because plaintiffs failed to demonstrate “that further discovery might reveal material facts that are in defendant’s exclusive possession,” Supreme Court’s grant of summary judgment to the Village was not premature (Semzock v State of New York, 97 AD3d 1012, 1013 [2012]).
discussed Cited as authority (rule) Hamelin v. Town of Chateaugay
N.Y. App. Div. · 2012 · confidence medium
In order to meet their burden of demonstrating their entitlement to judgment dismissing the complaint, defendants were required to demonstrate the absence of ownership, occupancy, control or special use with regard to the side entrance steps and that they neither created nor had authority to remedy the dangerous condition thereof, thus eliminating any duty of care to plaintiff (see Semzock v State of New York, 97 AD3d 1012, 1012 [2012]; Silverberg v Palmerino, 61 AD3d 1032, 1034 [2009]; Kozak v Broadway Joe’s, 296 AD2d 683, 684 [2002]; Vander Veer v Henderson, 267 AD2d 584, 586 [1999]).
discussed Cited as authority (rule) Hamelin v. Town of Chateaugay
N.Y. App. Div. · 2012 · confidence medium
In order to meet their burden of demonstrating their entitlement to judgment dismissing the complaint, defendants were required to demonstrate the absence of ownership, occupancy, control or special use with regard to the side entrance steps and that they neither created nor had authority to remedy the dangerous condition thereof, thus eliminating any duty of care to plaintiff (see Semzock v State of New York, 97 AD3d 1012, 1012 [2012]; Silverberg v Palmerino, 61 AD3d 1032, 1034 [2009]; Kozak v Broadway Joe’s, 296 AD2d 683, 684 [2002]; Vander Veer v Henderson, 267 AD2d 584, 586 [1999]).
cited Cited "see" Martuscello v. Jensen
N.Y. App. Div. · 2015 · signal: accord · confidence high
Mapes, Inc., 22 AD3d 1012, 1013 [2005] [internal quotation marks and citation omitted]; accord Semzock v State of New York, 97 AD3d 1012, 1012 [2012]).
Retrieving the full opinion text from the archive…
Charles W. Semzock
v.
State of New York
Appellate Division of the Supreme Court of the State of New York.
Jul 19, 2012.
97 A.D.3d 1012
Malone.
Cited by 16 opinions  |  Published
Malone Jr., J.

Claimant commenced this action in 2007 seeking damages for injuries he suffered as a result of a motor vehicle accident that occurred at the crest of a hill on Spier Falls Road, also known as County Route 28, in the Town of Moreau, Saratoga County near a roadside parking/pull-off area. Claimant alleges, among other things, that defendant owns the land on which the pull-off area is located and that defendant negligently designed, constructed and maintained the area. Following joinder of issue and some discovery, defendant moved in 2008 for summary judgment dismissing the claim, which motion the Court of Claims apparently denied pending discovery. Following further discovery, defendant again moved in 2010 for summary judgment dismissing the claim. The court granted the motion and dismissed the claim, and claimant now appeals.

Generally, “ ‘[1]lability for an injury caused by a dangerous or defective condition on property is . . . predicated upon ownership, occupancy, control or special use of the property[.] . . . Where none is present, a party cannot be held liable’ ” (Gadani v Dormitory Auth. of State of N.Y., 64 AD3d 1098, 1102 [2009], quoting Seymour v David W. Mopes, Inc., 22 AD3d 1012, 1013 [2005]; accord Rackowski v Realty USA, 82 AD3d 1475, 1476 [2011]; see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 675 [1999]). Here, in support of its motion for summary judgment, defendant provided sufficient admissible evidence to establish that it has never owned, maintained or otherwise controlled or made special use of the roadside pull-off, and that the pull-off is, or was formerly, owned and maintained by the Niag[*1013] ara Mohawk Power Corporation.* This evidence satisfied defendant’s initial burden as the movant for summary judgment dismissing the claim (see Battaglia v Town of Bethlehem, 46 AD3d 1151, 1154 [2007]). Claimant’s evidence in opposition, including evidence that defendant may have cleared litter from the pull-off area and evidence that one of defendant’s agents had at times used the area to conduct bald eagle surveys, was insufficient to demonstrate that an issue of fact existed as to defendant’s ownership, control or special use of the area at issue (see Kiselis v Speculator Chamber of Commerce, 234 AD2d 677, 679 [1996]).

Finally, contrary to claimant’s assertion, the instant motion for summary judgment was not premature inasmuch as there is no indication that further discovery might reveal material facts that are in defendant’s exclusive possession (see Welsh v County of Albany, 235 AD2d 820, 822 [1997]). We will not review claimant’s proffered alternative basis for liability as it is raised for the first time on appeal (see Rielly v Naftal, 300 AD2d 811 [2002]), and his remaining contentions have been considered and found to be without merit.

Peters, PJ., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, without costs.

Claimant acknowledges that Spier Falls Road/County Route 28 is owned by Saratoga County.