Zorin v. City of New YorkZorin v. City of New York
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs, the motion of the defendant Storage Deluxe Enterprises, LLC, inter alia, for summary judgment dismissing the complaint insofar as asserted against it is granted, and the respective cross motions of the defendants City of New York and Delta General Contracting & Management Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them are granted.
The plaintiff allegedly was injured when she tripped and fell on a sidewalk abutting 38-01 47th Avenue in Queens. She commenced the instant action to recover damages for her injuries against, among others, the defendant Storage Deluxe Enterprises, LLC (hereinafter SDE), which leased and occupied the premises, the defendant City of New York, and the defendant Delta General Contracting & Management Corp. (hereinafter Delta), a contractor that performed work on a portion of the sidewalk. After the plaintiff testified at a hearing held pursuant to
Contrary to the contentions of SDE, the City, and Delta, the plaintiff‘s deposition testimony did not demonstrate that she was unable to identify the cause of the accident, or that she engaged in mere speculation as to the cause of the accident (see generally Viviano v KeyCorp, 128 AD3d 811, 812 [2015]; cf. Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434, 435 [2006]). Rather, she specifically testified that she tripped where there was a hole in the sidewalk, and identified the hole by reference to a photograph that she described as a “fair and accurate” depiction of the area at the time of the accident (cf. O‘Connor v Metro Mgt. Dev., Inc., 130 AD3d 698, 700 [2015]).
However, SDE was entitled to summary judgment dismissing the complaint insofar as asserted against it because, as a tenant, rather than the owner, of the premises, it owed no duty to the plaintiff to maintain the sidewalk. Although SDE did not raise this argument before the Supreme Court, this is a purely legal argument that appears on the face of the record and could not have been avoided had it been brought to the attention of the Supreme Court (see 126 Newton St., LLC v Allbrand Commercial Windows & Doors, Inc., 121 AD3d 651, 652 [2014]; see also
The Supreme Court erred in denying Delta‘s cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. While a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk (see Huerta v 2147 Second Ave., LLC, 129 AD3d 668, 669 [2015]; Santelises v Town of Huntington, 124 AD3d 863, 865 [2015]; Lewis v City of New York, 82 AD3d 1054 [2011]), Delta established, prima facie, that it did not cause or create the subject hole in the sidewalk. Approximately three years prior to the accident, Delta performed work on the portion of sidewalk where the plaintiff fell. However, Delta demonstrated that, when it completed the work, there was no sign of a hole in the sidewalk, and that it did not otherwise cause or create the condition. Notably, Delta received no complaints, or further requests, after its work was completed three years prior to the accident. The plaintiff‘s arguments in opposition to Delta‘s prima facie showing were speculative and insufficient to raise a triable issue of fact (see Devlin v Selimaj, 116 AD3d 730 [2014]; Ciavarelli v Town of Islip, 67 AD3d 623 [2009]; cf. Smith v City of Mount Vernon, 101 AD3d 847, 848-849 [2012]). Accordingly, the Supreme Court should have granted Delta‘s cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
The Supreme Court also erred in denying the City‘s cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.