Opinion
No. 2023-00924 Index No. 500321/18
09-18-2024
Anabella Barnes, respondent, v. City of New York, et al., defendants, John P. Picone, Inc., appellant.
Newman Myers Kreines Harris, P.C., New York, NY (Matthew D. Lavoie and Gretchen A. Becht of counsel), for appellant. Law Office of Bryan Barenbaum, P.C., Brooklyn, NY (Huy [Tom] Le of counsel), for respondent.
Newman Myers Kreines Harris, P.C., New York, NY (Matthew D. Lavoie and Gretchen A. Becht of counsel), for appellant.
Law Office of Bryan Barenbaum, P.C., Brooklyn, NY (Huy [Tom] Le of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. LINDA CHRISTOPHER LARA J. GENOVESI LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a consolidated action to recover damages for personal injuries, the defendant John P. Picone, Inc., appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated December 14, 2022. The order denied that defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On July 11, 2017, the plaintiff allegedly tripped and fell on a bump within a crosswalk. The plaintiff commenced an action against the City of New York. Thereafter, the plaintiff commenced a separate action against, among others, the defendant John P. Picone, Inc. (hereinafter the defendant). Pursuant to an order dated May 23, 2022, the two actions were consolidated for all purposes and the caption was amended accordingly. In an order dated December 14, 2022, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it. The defendant appeals.
"The law imposes a duty to maintain property free and clear of dangerous or defective conditions only upon those who own, occupy, or control property, or who put the property to a special use or derive a special benefit from it" (Thomas v City of New York, 216 A.D.3d 1199, 1199 [internal quotation marks omitted]; see Bliss v City of New York, 162 A.D.3d 730, 731). "Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality" (Thompson v Nassau County, 200 A.D.3d 823, 825). However, "[a] contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk" (Lewis v City of New York, 82 A.D.3d 1054, 1055; see Schaum v City of New York, 216 A.D.3d 691, 692; Downing v J. Anthony Enters., Inc., 189 A.D.3d 1541, 1542). Here, the evidence submitted by the defendant in support of its motion, which included the affidavit of its construction manager, failed to satisfy its prima facie burden of demonstrating that it did not perform any work in the area where the accident occurred or create the defect at issue, which may have been in existence since the early 2010s (see Downing v J. Anthony Enters., Inc., 189 A.D.3d at 1542; Malayeva v City of New York, 180 A.D.3d 888, 890). Since the defendant failed to meet its initial burden as the movant, it is unnecessary to review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.
In light of our determination, we need not address the plaintiff's remaining contention.
CONNOLLY, J.P., CHRISTOPHER, GENOVESI and LOVE, JJ., concur.