Opinion
Nos. 151158/2019 595914/2020 Motion Seq. No. 005
12-09-2022
ANGIE DEOLEO, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., 4650 TIC LLC, PARK IT MANAGEMENT CORP., 4650 BROADWAY HOLDINGS, LLC, Defendants. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Plaintiff, v. 4650 BROADWAY HOLDINGS, LLC, Third-Party Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. JUDY H. KIM, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 195 were read on this motion for SUMMARY JUDGMENT.
On March 12, 2019, plaintiff commenced this negligence action alleging that on June 16, 2018, she tripped and fell on a defect within the sidewalk abutting the property of 4650 Broadway, New York, New York, sustaining injuries (NYSCEF Doc. Nos. 177 [Am. Compl. at ¶104]). At her General Municipal Law ("GML") §50-h hearing, plaintiff testified, in pertinent part, as follows:
Q. When this accident occurred, did you trip on anything?
A. I tripped on the hole on the sidewalk.
A. I was walking. The grate is to my right side. The hole is right next to the grate, left to the grate.
Q. How far were you from the grate at the time of the accident?
A. Inches away, about five inches.
Q. Where exactly on the left side of the grate was this hole?
A. It was right next to it.(NYSCEF Doc. No. 184 [Deoleo GML §50-h Tr. at pp. 21-26]).
Photographs referenced at plaintiffs GML §50-h hearing depict this hole extending from the metal border of a grating within the sidewalk (NYSCEF Doc. No. 185).
Defendant the City of New York (the "City") now moves, pursuant to CPLR §3212, for summary judgment dismissing the complaint and all cross-claims against it, on the grounds that it does not own the subject grate and therefore-under the Rules of the City of New York Department of Transportation (34 RCNY) §2-07(b)(1)-is not responsible for the subject defect. In support of its motion, the City submits defendant Consolidated Edison Company of New York, Inc.'s response to the Notice to Admit by defendant New York City Transit Authority, in which Consolidated Edison Company of New York, Inc. ("ConEd") admitted that on the date of plaintiffs fall, ConEd owned the gratings depicted in plaintiffs Notice of Claim (NYSCEF Doc. No. 31).
The City also submits the (1) the affidavit of Gabriela Paiz, a New York City Department of Transportation ("DOT") employee, detailing the results of a record search performed "for the sidewalk located at Sherman Avenue between Broadway and Arden Street (on the side of 4650 Broadway) (to include Ellwood Street and Sickles Street) in the County, City, and State of New York" for the two-year period prior to and including the date of plaintiff s fall (NYSCEF Doc. No. 188 [Paiz Aff. at ¶3]); and (2) the records produced by that search (NYSCEF Doc. No. 187).
The City's motion is granted on default and for the reasons set forth below.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]).
34 RCNY §2-07 provides, in pertinent part, that "[t]he owners of covers or gratings on a street are responsible for monitoring the condition of the covers, gratings and concrete pads installed around such covers or gratings and the area extending twelve inches outward from the edge of the cover, grating, or concrete pad" and must "replace or repair any cover or grating found to be defective [as well as]... any defective street condition found within an area extending twelve inches outward from the perimeter of the cover or grating" (34 RCNY §2-07[b]).
In this case, it is undisputed that this statute applies because the subject defect was within the twelve-inch radius of the grate. In addition, this Court finds that the City has established, through ConEd's response to NYCTA's Notice to Admit, that it is not the owner of the subject grating. Accordingly, the City had no statutory duty to maintain the subject defect that allegedly caused plaintiffs trip and fall (See Storper v Kobe Club, 76 A.D.3d 426, 427 [1st Dept 2010]). In addition, the City has established that it did not cause or create this defective condition through its submission of undisputed documentary evidence-the Paiz affidavit and attached DOT records- demonstrating that the City did not perform work on the subject sidewalk in the two years prior to plaintiff s fall (See e.g., Rizzo v City of New York, 178 A.D.3d 503, 503-04 [1st Dept 2019]).
Accordingly, it is
ORDERED that the motion by defendant the City of New York for summary judgment is granted and the complaint and all cross-claims are dismissed as against it; and it is further
ORDERED that within thirty days from entry of this decision and order, counsel for defendant the City of New York shall serve a copy of this decision and order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on this court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that since defendant the City of New York is no longer a party to this action, the Trial Support Office shall reassign this action to the inventory of a non-City Part.
This constitutes the decision and order of the Court.