Opinion
8860 Index 158614/14E
04-02-2019
Rory SCHWARTZ, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants, Val–Mac Restaurant, Inc., et al., Defendants–Respondents.
Gruenberg Kelly Della, Ronkonkoma (Zachary M. Beriloff of counsel), for appellant. Law Office of James J. Toomey, New York (Jason Meneses of counsel), for respondents.
Gruenberg Kelly Della, Ronkonkoma (Zachary M. Beriloff of counsel), for appellant.
Law Office of James J. Toomey, New York (Jason Meneses of counsel), for respondents.
Sweeny, J.P., Manzanet–Daniels, Kern, Singh, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about January 2, 2018, which granted the motion of defendants Val–Mac Restaurant, Inc., Spain Restaurant and Bar, and Julio Diaz (collectively Val–Mac) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff tripped and fell in a tree well as he walked on the sidewalk in front of Val–Mac's property, which was undergoing repairs to a sewer line running to the street. Absent evidence that Val–Mac controlled the construction or made special use of the sidewalk, there is no issue of fact as to whether it proximately caused the accident, rather than "merely furnish[ing] the condition or occasion for the occurrence of the event" ( Sheehan v. City of New York , 40 N.Y.2d 496, 503, 387 N.Y.S.2d 92, 354 N.E.2d 832 [1976] ; Singh v. McCrossen , 111 A.D.3d 531, 532, 975 N.Y.S.2d 336 [1st Dept. 2013] ). As the tree well is not part of the sidewalk under Val–Mac's control, the court properly granted summary judgment (see Vucetovic v. Epsom Downs, Inc. , 10 N.Y.3d 517, 521–522, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008] ).