Opinion
8845–8846 Index 300443/17 28361/17E
04-02-2019
Jose BRITTON, Plaintiff–Appellant, v. Felicia RILEY–FANN, et al., Defendants, Starrett City, Inc, et al., Defendants–Respondents. Jose Britton, Plaintiff–Appellant, v. Starrett Corporation, et al., Defendants–Respondents.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for appellant. Brody & Branch LLP, New York (Mary Ellen O'Brien of counsel), for respondents.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for appellant.
Brody & Branch LLP, New York (Mary Ellen O'Brien of counsel), for respondents.
Sweeny, J.P., Manzanet–Daniels, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about April 5, 2018, which, insofar as appealed from as limited by the briefs, granted defendants Starrett City, Inc., Starrett Preservation, LLC, and Starrett City Associates, L.P.'s motion to dismiss the complaint as against them, unanimously affirmed, without costs. Order, same court (Mary Ann Brigantti, J.), entered April 12, 2018, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Both complaints allege that plaintiff's injuries were caused by a motor vehicle whose driver, defendant Anthony Britton, negligently and recklessly caused it to jump the curb and strike plaintiff, who was standing on the sidewalk in front of certain premises. The complaints further allege that the Starrett defendants and the Grenadier defendants negligently owned, controlled, managed, maintained and/or repaired the premises, including the driveway in front of the premises. Construing the allegations liberally in plaintiff's favor, the complaint fails to state a cause of action for negligence against these defendants, because it does not allege a basis for imposing a duty of care on them to take preventive action against the unforeseeable risk that a vehicle will mount the sidewalk and strike a pedestrian (see Jiminez v. Shahid, 83 A.D.3d 900, 901, 922 N.Y.S.2d 123 [2d Dept. 2011], lv denied 18 N.Y.3d 807, 940 N.Y.S.2d 563, 963 N.E.2d 1264 [2012] ; see also Green v. Himon, 165 A.D.3d 590, 591, 87 N.Y.S.3d 22 [1st Dept. 2018] ).