Opinion
No. 2022-04840 Index No. 505399/15
12-13-2023
Emilya Avagyan, appellant, v. City of New York, respondent.
William Pager, Brooklyn, NY, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Melanie T. West and Amy McCamphill of counsel), for respondent.
William Pager, Brooklyn, NY, for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Melanie T. West and Amy McCamphill of counsel), for respondent.
COLLEEN D. DUFFY, J.P. LINDA CHRISTOPHER LILLIAN WAN CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated May 18, 2022. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On May 1, 2015, the plaintiff commenced this action against the defendant, City of New York, to recover damages for personal injuries she allegedly sustained when her foot became caught in a depression in a sidewalk, causing her to fall. The defendant moved for summary judgment dismissing the complaint, arguing that it did not create the condition and that pursuant to Administrative Code of the City of New York § 7-210, the abutting landowner was responsible for maintaining the sidewalk where the accident occurred. In an order dated May 18, 2022, the Supreme Court granted the defendant's motion, determining that the abutting property did not fall under the exemption found in Administrative Code § 7-210(b). The court also determined that the defendant established, prima facie, that it did not have prior written notice of the condition and that it did not create the condition. The plaintiff appeals.
"Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner" (Bisono v Quinn, 125 A.D.3d 704, 704; see Hausser v Giunta, 88 N.Y.2d 449, 452-453). "The exceptions to this rule are when the landowner actually created the dangerous condition, made negligent repairs that caused the condition, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk" (Buonviaggio v Parkside Assoc., L.P., 120 A.D.3d 460, 461; see Gibbs v Husain, 184 A.D.3d 809, 810). "Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, except for sidewalks abutting one-, two-, or three-family residential properties that are owner occupied and used exclusively for residential purposes" (Zorin v City of New York, 137 A.D.3d 1116, 1118; see Administrative Code § 7-210[b]; Martin v Newton, 206 A.D.3d 644, 645).
Here, as the defendant concedes on appeal, the defendant failed to establish, prima facie, that the abutting property owner, rather than the defendant, should be held liable for the plaintiff's injuries (see Administrative Code § 7-210; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The defendant also failed to establish, prima facie, that it did not create the alleged defective sidewalk condition (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853).
Moreover, "on a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court" (Matter of Pritchett, 128 A.D.3d 836, 837; see Dunham v Hilco Constr. Co., 89 N.Y.2d 425, 429-430). Here, the Supreme Court should not have granted the defendant's motion for summary judgment dismissing the complaint on the ground that the defendant did not have prior written notice of the condition, since the defendant never raised this issue in its motion papers (see Johnson v 101-105 S. Eighth St. Apts. Hous. Dev. Fund Corp., 185 A.D.3d 671, 672; Patel v Sharma, 168 A.D.3d 966, 967), and, as the defendant concedes, it did not submit any evidence to show that it did not have prior written notice of the condition.
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853).
DUFFY, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.