Summary
In Trent-Clark v. City of New York, 114 A.D.3d 558, 558 (1st Dep't 2014) the Court held that the photographic evidence demonstrated that the purported defect was on the curb which the abutting landowner had no duty to maintain and dismissed the case against abutting landowner.
Summary of this case from Bautista v. City of N.Y.Opinion
2014-02-20
Sebrina TRENT–CLARK, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants, J.P. Morgan Chase & Co., et al., Defendants–Respondents. [And a Third–Party Action].
Law Offices of Michael S. Lamonsoff, PLLC, New York (Ryan Lawlor of counsel), for appellant. Russo & Toner, LLP, New York (Marcin J. Kurzatkowski of counsel), for respondents.
Law Offices of Michael S. Lamonsoff, PLLC, New York (Ryan Lawlor of counsel), for appellant. Russo & Toner, LLP, New York (Marcin J. Kurzatkowski of counsel), for respondents.
GONZALEZ, P.J., TOM, SAXE, FREEDMAN, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about July 2, 2013, which granted the motion of defendants J.P. Morgan Chase Bank, NA, s/h/a J.P. Morgan Chase & Co. and Manhattan Banking Corporation (collectively Chase) for summary judgment dismissing the complaint as against Chase, unanimously affirmed, without costs.
Chase established entitlement to judgment as a matter of law in this action for injuries sustained by plaintiff after she tripped and fell at the curb “near the exit of the driveway of the Chase on 233rd.” on or in a defect in the road. Plaintiff testified that although she could not recall exactly where her feet were when she fell, she was on “kind of like a curb” near “the exit driveway of ... Chase” and had stepped off the curb onto the street.
The photographic evidence submitted by plaintiff indicates that the purported defect is on the curb, where the driveway exiting Chase's parking lot meets the roadway. It would not be Chase's responsibility to maintain the curb or correct a defect on it unless Chase engaged in some special use of the area ( see Ascencio v. New York City Hous. Auth., 77 A.D.3d 592, 910 N.Y.S.2d 61 [1st Dept.2010] ).
Moreover, Chase submitted evidence showing that it neither created the subject defect nor had actual or constructive notice of it. Chase's witness testified that he did not recall the premises having any issues around its exterior within the six months prior to the accident, that there were no complaints regarding the property in the year prior to the accident, and that he did not recall hiring anyone to work on the sidewalk or curb prior to plaintiff's fall ( see Burko v. Friedland, 62 A.D.3d 462, 878 N.Y.S.2d 64 [1st Dept.2009] ).
Although a driveway running over a sidewalk constitutes a special use, there is no evidence that the defect alleged here was caused by cars driving over the curb for Chase's sole commercial benefit ( see O'Brien v. Prestige Bay Plaza Dev. Corp., 103 A.D.3d 428, 429, 959 N.Y.S.2d 193 [1st Dept.2013];see also Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 299, 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 argument that the weight of the traffic from the driveway may have been a cause of the accident, is unavailing. The argument is speculative and based solely upon her attorney's affirmation. Plaintiff failed to submit any expert affidavit or testimony as to the cause or alleged nature of the defect and Chase's culpability therefor ( see Joseph v. Pitkin Carpet, Inc., 44 A.D.3d 462, 464, 843 N.Y.S.2d 586 [1st Dept.2007] ).