Opinion
2014-02-13
Johanna DIBITETTO, Plaintiff–Appellant, v. Robert FERRIELLO, Defendant–Respondent, [And A Third–Party Action].
Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for appellant. Morris E. Matza, New York, for respondent.
Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for appellant. Morris E. Matza, New York, for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about November 23, 2012, which, insofar as appealed from, granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when, while walking on the sidewalk in front of defendant's home, she fell after her foot became stuck in a depression in the grassy area between the concrete sidewalk and the curb. Defendant, as the owner and resident of a one-family home adjacent to the area where plaintiff fell, submitted evidence showing that he did not cause or create the subject depression ( see Administrative Code of City of New York § 7–210[b]; Troncoso v. City of New York, 306 A.D.2d 208, 760 N.Y.S.2d 846 [1st Dept.2003] ).
In opposition, plaintiff failed to present nonhearsay evidence in admissible form sufficient to raise a triable issue of fact as to whether defendant caused or created the condition (see Waiters v. Northen Trust Co. of N.Y., 29 A.D.3d 325, 327, 816 N.Y.S.2d 18 [1st Dept.2006]; see also Kane v. Estia Greek Rest., 4 A.D.3d 189, 190, 772 N.Y.S.2d 59 [1st Dept.2004] ). ACOSTA, J.P., ANDRIAS, SAXE, FREEDMAN, FEINMAN, JJ., concur.