Opinion
2018–09649 Index No. 707838/15
09-25-2019
Vita CAVARETTA, Appellant, v. MICHIGAN COOPERATIVE CORP., et al., Respondents, et al., Defendant.
Bongiorno Law Firm (Edelstein & Grossman, New York, N.Y. [Jonathan I. Edelstein ], of counsel), for appellant. Miller, Leiby & Associates, P.C., New York, N.Y. (Jeffrey A. Miller of counsel), for respondents. Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Deborah E. Wassel of counsel), for defendant City of New York (no brief filed).
Bongiorno Law Firm (Edelstein & Grossman, New York, N.Y. [Jonathan I. Edelstein ], of counsel), for appellant.
Miller, Leiby & Associates, P.C., New York, N.Y. (Jeffrey A. Miller of counsel), for respondents.
Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Deborah E. Wassel of counsel), for defendant City of New York (no brief filed).
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly tripped and fell on a broken curb in front of a cooperative apartment complex in Queens, which was owned by the defendant Michigan Cooperative Corp. and managed by the defendant Delkap Management, Inc. (hereinafter together the defendants).
The plaintiff subsequently commenced this personal injury action alleging, among other things, that the defendants made special use of the curb and therefore had a duty to maintain it. The defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted that branch of their motion, and the plaintiff appeals.
Contrary to the plaintiff's contention, the defendants established, prima facie, that the defective condition which allegedly caused the plaintiff's accident was located on the curb, rather than the sidewalk (see Administrative Code of City of N.Y. §§ 7–210, 19–101[d]; Vucetovic v. Epsom Downs, Inc. , 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 ; Alleyne v. City of New York , 89 A.D.3d 970, 971, 933 N.Y.S.2d 348 ; cf. Buonviaggio v. Parkside Assoc., L.P. , 120 A.D.3d 460, 461–462, 990 N.Y.S.2d 595 ). Moreover, they established, prima facie, that they did not make a special use of the curb in question (see generally Kaufman v. Silver , 90 N.Y.2d 204, 207–208, 659 N.Y.S.2d 250, 681 N.E.2d 417 ; Jordan v. City of New York , 23 A.D.3d 436, 437, 807 N.Y.S.2d 595 ). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.
DILLON, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur.