Early v. Hilton Hotels Corp.

• Decision Date: 18 May 2010
• Citation: 904 N.Y.S.2d 367,73 A.D.3d 559
• Parties: Elizabeth EARLY, et al., Plaintiffs-Respondents, v. HILTON HOTELS CORPORATION, etc., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 367
73 A.D.3d 559

Elizabeth EARLY, et al., Plaintiffs-Respondents,
v.
HILTON HOTELS CORPORATION, etc., et al., Defendants-Appellants.

Supreme Court, Appellate Division, First Department, New York.

May 18, 2010.

904 N.Y.S.2d 368

Edward J. Guardaro, Jr., White Plains, for appellants.

Worby Groner Edelman, LLP, White Plains (Michael L. Taub of counsel), for respondents.

ANDRIAS, J.P., McGUIRE, MOSKOWITZ, FREEDMAN, ROMÁN, JJ.

73 A.D.3d 560

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 14, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed against all defendants. The Clerk is directed to enter judgment accordingly.

Plaintiff Elizabeth Early allegedly tripped and fell on a plastic strap while traversing the sidewalk adjacent to the loading dock of defendants' premises. Plaintiffs allege that defendants were negligent in the maintenance of the sidewalk abutting their property and that this negligence caused the accident.

Defendants moved for summary judgment and the motion court denied the motion solely on grounds that questions of fact regarding whether defendants created the condition alleged precluded summary judgment. The motion court, implicitly finding the issue of notice inapplicable, never addressed the same. We now reverse.

On September 14, 2003, with the passage of § 7-210 of the Administrative Code of the City of New York, the duty to maintain and repair public sidewalks, within the City of New York, and any liability for the failure to do so, was shifted, with certain exceptions, to owners, whose property abuts the sidewalk ( see Ortiz v. City of New York, 67 A.D.3d 21, 25, 884 N.Y.S.2d 417 [2009], revd. on other grounds 14 N.Y.3d 779, 898 N.Y.S.2d 544, 925 N.E.2d 582 [2010]; Wu Zhou Wu v. Korea Shuttle Express Corp., 23 A.D.3d 376, 377, 808 N.Y.S.2d 82 [2005]; Klotz v. City of New York, 9 A.D.3d 392, 393, 781 N.Y.S.2d 357 [2004] ). Accordingly, owners of nonexempted properties must now keep the sidewalks abutting their properties in a reasonably safe condition, much in the same way they are obligated to maintain their respective premises. It is well settled that in order to hold an owner liable for a dangerous condition within a premises, it must be established that the owner created the dangerous condition alleged

904 N.Y.S.2d 369

( Wasserstrom v. New York City Tr. Auth., 267 A.D.2d 36, 37, 699 N.Y.S.2d 378 [1999], lv. denied

73 A.D.3d 561

94 N.Y.2d 761, 707 N.Y.S.2d 142, 728 N.E.2d 338 [2000]; Allen v. Pearson Pub., 256 A.D.2d 528, 529, 683 N.Y.S.2d 100 [1998]; Kraemer v. K-Mart Corp., 226 A.D.2d 590, 590, 641 N.Y.S.2d 130 [1996] ) or failed to remedy the condition, despite having prior actual or constructive notice of it ( See Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994]; Bogart v. Woolworth Co., 24 N.Y.2d 936, 937, 301 N.Y.S.2d 995, 249 N.E.2d 771 [1969]; Irizarry v. 15 Mosholu Four,...