Opinion
2012-12-27
Michael THOMPSON, Plaintiff–Appellant, v. 793–97 GARDEN STREET HOUSING DEVELOPMENT FUND CORPORATION, Defendant–Respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York (Barbara Apostol Hayes of counsel), for respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York (Barbara Apostol Hayes of counsel), for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered October 11, 2011, which granted defendant'smotion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for leave to amend his bill of particulars, unanimously affirmed, without costs.
The record demonstrates conclusively that defendant did not own the property that abutted the sidewalk on which plaintiff tripped and fell, and was therefore not responsible for maintaining it in a reasonably safe condition ( see Administrative Code of City of N.Y. § 7–210; Montalbano v. 136 W. 80 St. CP, 84 A.D.3d 600, 602–603, 923 N.Y.S.2d 489 [1st Dept. 2011] ).
Plaintiff's proposed amendment of his bill of particulars to allege that defendant made special use of the sidewalk is unsupported by evidence that the sidewalk was subject to defendant's control ( see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298, 532 N.Y.S.2d 105 [1st Dept. 1988],lv. dismissed in part, denied in part73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671 [1988] ). Plaintiff's evidence shows merely that many people, including some of defendant's tenants, use the sidewalk to exit a de facto parking lot on a nearby abandoned dirt road.
We have considered plaintiff's remaining contentions and find them unavailing.