Opinion
01-17-2017
Mercedes PUELLO, Plaintiff–Respondent, v. The GEORGES UNITS, LLC, et al., Defendants–Appellants, The City of New York, Defendant–Respondent.
McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy of counsel), for appellants. Edelstein & Grossman, New York (Jonathan I. Edelstein of counsel), for Mercedes Puello, respondent. Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for the City of New York, respondent.
McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy of counsel), for appellants.
Edelstein & Grossman, New York (Jonathan I. Edelstein of counsel), for Mercedes Puello, respondent.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for the City of New York, respondent.
ACOSTA, J.P., MAZZARELLI, MANZANET–DANIELS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (James E. d'Auguste, J.), entered December 7, 2015, which granted defendant City of New York's motion for summary judgment dismissing the complaint and all cross claims as against it, and denied the cross motion of defendants The Georges Units, LLC and Eilat Management (the owners) for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.
The City established its entitlement to judgment as a matter of law by submitting evidence, including plaintiff's testimony and photographs, showing that the defect upon which plaintiff tripped was not located on the corner pedestrian ramp, which the City is required to maintain, but on the sidewalk abutting the owners' property, which the owners were required to maintain (see Gary v. 101 Owners Corp., 89 A.D.3d 627, 934 N.Y.S.2d 13 [1st Dept.2011] ; Ortiz v. City of New York, 67 A.D.3d 21, 27, 884 N.Y.S.2d 417 [1st Dept.2009], revd. on other grounds 14 N.Y.3d 779, 898 N.Y.S.2d 544, 925 N.E.2d 582 [2010] ; Administrative Code of City of NY § 7–210[a] ).
The owners argue, based on certain construction standards and reference standards for curb ramps under the Americans with Disabilities Act of 1990, that the definition of a "pedestrian ramp" encompasses the landing area at the top of the ramp and the entire corner quadrant. However such a broad interpretation of the term is inconsistent with section 7–210(a) of the Administrative Code, which expressly defines the sidewalk to include the "intersection quadrant for corner property" (see also Administrative Code § 19–152[a]; § 19–112). Nor was there evidence that the City affirmatively created the defect.
Supreme Court properly denied the owners' cross motion for summary judgment as untimely with respect to dismissal of plaintiff's claims as against them, because the cross motion was an improper cross motion with respect to plaintiff, the nonmovant, and the owners did not show good cause for the delay (see Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ; Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 82, 978 N.Y.S.2d 13 [1st Dept.2013] ). Furthermore, the cross motion, with respect to the City's cross claims as against the owners, was properly denied as academic in light of the granting of the City's motion.