Opinion
12529 Index No. 152830/18 Case No. 2020-02084
02-16-2021
John HARRINGTON et al., Plaintiffs, v. AZOGUES CORP., doing business as Via Italia Restaurant, Defendant–Respondent, 77 NY@ 46 St., LLC, et al., Defendants–Appellants.
Smith Mazure, P.C., New York (Louise M. Cherkis of counsel), for appellants. Clausen Miller, P.C., New York (Djordje Caran and Don R. Sampen of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.
Smith Mazure, P.C., New York (Louise M. Cherkis of counsel), for appellants.
Clausen Miller, P.C., New York (Djordje Caran and Don R. Sampen of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Singh, Scarpulla, JJ.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered March 6, 2020, which denied defendants 77 NY@ 46 St., LLC and Management by 77, LLC's (together, 77 NY) motion for summary judgment dismissing the complaint and cross claims against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured when he fell through open cellar doors in the sidewalk in front of premises owned and managed by 77 NY. The motion court should have granted the motion by 77 N.Y. for a dismissal of the claims and cross claims asserted against them. There was no evidence that these defendants negligently or defectively constructed, maintained or repaired the premises or that there was any violation of Administrative Code of the City of New York § 28-301.1. Specifically, there is no evidence that the cellar doors themselves were an unsafe construction, nor is there any claim that, with the doors in place, there was a negligent condition. The doors only became unsafe by their improper use, i.e., when the first-floor tenant opened the cellar doors from the basement in violation of the usual procedure of opening the doors from the sidewalk to ensure the safety of pedestrians (see Brown v. Weinreb, 183 A.D.2d 562, 583 N.Y.S.2d 460 [1st Dept. 1992]; see also Wisznic v. Nostrand Shoppers, 215 A.D.2d 553, 626 N.Y.S.2d 837 [2d Dept. 1995] ).
Contrary to Azogues’ contentions, liability may not be imposed on 77 N.Y. based on a failure to provide safeguards to prevent injury, such as warning lights or signals (see e.g. Brown v. Weinreb, 183 A.D.2d at 563, 583 N.Y.S.2d 460 ). Nor is Administrative Code § 7–210 applicable, because there is no evidence that the condition of the sidewalk was a proximate cause of the accident.
The Decision and Order of this Court entered herein on December 3, 2020 ( 189 A.D.3d 434, 137 N.Y.S.3d 16 [1st Dept. 2020] ) is hereby recalled and vacated (see M–4077 decided simultaneously herewith).