Opinion
01-31-2024
Jonathan CUMBAL, respondent, v. 83-09 35TH REALTY, LLC, appellant; City of New York, third-party defendant.
Margaret G. Klein (Mischel & Horn, P.C., New York, NY [Scott T. Hom and Lauren E. Bryant], of counsel), for appellant. Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul Seidenstock], of counsel), for respondent.
Margaret G. Klein (Mischel & Horn, P.C., New York, NY [Scott T. Hom and Lauren E. Bryant], of counsel), for appellant.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul Seidenstock], of counsel), for respondent.
ANGELA G. IANNACCI, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), dated April 30, 2021. The order granted the plaintiff’s motion for summary judgment on the issue of the defendant third-party plaintiff’s liability.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against 83–09 35th Realty, LLC (hereinafter the defendant), to recover damages for injuries that he allegedly sustained when he tapped and tell due to a height differential between two sidewalk flags abutting the defendant’s premises. The defendant commenced a third-party action against the City of New York. In an order dated April 30, 2021, the Supreme Court granted the plaintiff’s motion for summary judgment on the issue of the defendant’s liability. The defendant appeals.
[1, 2] Administrative Code of the City of New York § 7–210(a) imposes a duty upon "the owner of real property abutting any sidewalk … to maintain such sidewalk in a reasonably safe condition" (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 860 N.Y.S.2d 429, 890 N.E.2d 191). "[T]o prevail on a motion for summary judgment, a plaintiff must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect" (Shiu Ya Luo v. Croyden Apts., Inc., 219 A.D.3d 1364, 1365, 195 N.Y.S.3d 798 [internal quotation marks omitted]).
[3] Here, the plaintiff established, prima facie, that the defendant had actual notice of the sidewalk defect and violated its duty to maintain the sidewalk abutting its property in a reasonably safe condition (see Administrative Code of City of N.Y. § 7–210; Shiu Ya Luo v. Croyden Apts., Inc., 219 A.D.3d 1364, 195 N.Y.S.3d 798; Brady v. 2247 Utica Ave. Realty Corp., 210 A.D.3d 621, 622, 177 N.Y.S.3d 627). In opposition, the defendant failed to raise a triable issue of fact. Issues of fact as to whether the City is also liable because it assumed a special duty to maintain the sidewalk, and whether the plaintiff was comparatively at fault, do not preclude summary judgment in favor of the plaintiff on the issue of the defendant’s liability (see generally Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366; Stanciu v. Bilello, 138 A.D.3d 824, 29 N.Y.S.3d 482).
Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the issue of the defendant’s liability.
IANNACCI, J.P., MALTESE, CHRISTOPHER and LOVE, JJ., concur.