Fernandez v. 707 Inc.

CourtNew York Supreme Court Appellate Division
Writing for the CourtANDRIAS, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ROMÁN, JJ.
Citation85 A.D.3d 539,926 N.Y.S.2d 408,2011 N.Y. Slip Op. 05180
Decision Date16 June 2011
PartiesJose FERNANDEZ, Plaintiff–Appellant–Respondent,v.707, INC., Defendant–Respondent,Biltmore Contracting, Inc., Defendant–Respondent–Appellant.

85 A.D.3d 539
926 N.Y.S.2d 408
2011 N.Y. Slip Op. 05180

Jose FERNANDEZ, Plaintiff–Appellant–Respondent,
v.
707, INC., Defendant–Respondent,Biltmore Contracting, Inc., Defendant–Respondent–Appellant.

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

June 16, 2011.


[926 N.Y.S.2d 409]

Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Robert H. Wolff of counsel), for appellant-respondent.Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondent-appellant.Kaufman Borgeest & Ryan LLP, New York (Dennis J. Dozis and Jacqueline Mandell of counsel), for respondent.ANDRIAS, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ROMÁN, JJ.

[85 A.D.3d 539] Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 22, 2010, which granted defendant 707, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Order, same court and Justice, entered July 22, 2010, which denied defendant Biltmore Contracting, Inc.'s motion for summary judgment dismissing

[926 N.Y.S.2d 410]

the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed enter judgment in Biltmore's favor dismissing the complaint as against it.

707, Inc. (707) obtained a “Builder's Pavement Plan” permit from the New York City Department of Transportation, dated May 3, 2006, to rebuild the sidewalks abutting its Bruckner Boulevard property. By its agent Hagivah, 707 hired Biltmore to perform the work, instructing Biltmore to leave specified sections of the sidewalk open to accommodate tree wells. 707 also obtained a tree planting permit from the New York City Department of Parks & Recreation and hired another company to plant the trees.

Biltmore commenced work on or about August 24, 2006 and completed it on or about September 14, 2006. On October 15, 2006, plaintiff allegedly was injured when he stepped into a tree well that was not level with the sidewalk. At the time, the City had yet to sign off on the sidewalk, and no trees had been planted. Subsequently, on October 30, 2006, 707's project engineer certified that the sidewalks had been constructed in accordance with the specifications set forth in the Rules and Regulations of the Department of Highways.

Although Administrative Code of the City of New York § 7–210 (eff. September 14, 2003) imposes tort liability on property owners who fail to maintain abutting city-owned sidewalks in a reasonably safe condition, 707 cannot be held liable for plaintiff's injuries by virtue of its status as an abutting landowner because a property owner's responsibility for a sidewalk does not extend to tree wells ( see [85 A.D.3d 540] Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008]; Grier v. 35–63 Realty, Inc., 70 A.D.3d 772, 895 N.Y.S.2d 149 [2010] ). The motion court correctly rejected plaintiff's...

To continue reading

Request your trial
26 practice notes
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...600 (1st Dep't 2010); Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342 (1st Dep't 2008). See Fernandez v. 707, Inc., 85 A.D.3d 539, 541 (1st Dep't 2011); Bairushi v. Gomo Corp., 18 A.D.3d 240, 241 (1st Dep't 2005); Golden v. Manhasset Condominium, 2 A.D.3d 345, 347 (1st......
  • Osorio v. Kenart Realty, Inc.
    • United States
    • New York Supreme Court — Appellate Term
    • October 16, 2013
    ...Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840 [1992]; Fernandez v. 707, Inc., 85 A.D.3d 539, 540, 926 N.Y.S.2d 408 [2011] ) is also without merit. Affixing aluminum panels to a wooden frame in preparation for the installation of a com......
  • Kouri v. Eataly NY LLC, Index No. 158476/2014
    • United States
    • United States State Supreme Court (New York)
    • September 25, 2020
    ...v. BR Guest, Inc., 149 A.D.3d 519, 520 (1st Dep't 2017); Alves v. Petik, 136 A.D.3d 426, 426 (1st Dep't 2016) Fernandez v. 707, Inc., 85 A.D.3d 539, 540 (1st Dep't 2011). While Conor Martin, Eataly's assistant general manager, testified at his deposition that neither he nor Eataly employees......
  • Weinfeld v. HR Photography, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • April 19, 2017
    ...Crossland Group, Inc., 92 A.D.3d 870, 871, 939 N.Y.S.2d 481 ; Barak v. Chen, 87 A.D.3d at 957, 929 N.Y.S.2d 315 ; Fernandez v. 707, Inc., 85 A.D.3d 539, 926 N.Y.S.2d 408 ; Chuchuca v. Chuchuca, 67 A.D.3d 948, 950, 890 N.Y.S.2d 573 ; Metling v. Punia & Marx, 303 A.D.2d 386, 388, 756 N.Y.......
  • Request a trial to view additional results
26 cases
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...600 (1st Dep't 2010); Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342 (1st Dep't 2008). See Fernandez v. 707, Inc., 85 A.D.3d 539, 541 (1st Dep't 2011); Bairushi v. Gomo Corp., 18 A.D.3d 240, 241 (1st Dep't 2005); Golden v. Manhasset Condominium, 2 A.D.3d 345, 347 (1st......
  • Osorio v. Kenart Realty, Inc.
    • United States
    • New York Supreme Court — Appellate Term
    • October 16, 2013
    ...Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840 [1992]; Fernandez v. 707, Inc., 85 A.D.3d 539, 540, 926 N.Y.S.2d 408 [2011] ) is also without merit. Affixing aluminum panels to a wooden frame in preparation for the installation of a com......
  • Kouri v. Eataly NY LLC, Index No. 158476/2014
    • United States
    • United States State Supreme Court (New York)
    • September 25, 2020
    ...v. BR Guest, Inc., 149 A.D.3d 519, 520 (1st Dep't 2017); Alves v. Petik, 136 A.D.3d 426, 426 (1st Dep't 2016) Fernandez v. 707, Inc., 85 A.D.3d 539, 540 (1st Dep't 2011). While Conor Martin, Eataly's assistant general manager, testified at his deposition that neither he nor Eataly employees......
  • Weinfeld v. HR Photography, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • April 19, 2017
    ...Crossland Group, Inc., 92 A.D.3d 870, 871, 939 N.Y.S.2d 481 ; Barak v. Chen, 87 A.D.3d at 957, 929 N.Y.S.2d 315 ; Fernandez v. 707, Inc., 85 A.D.3d 539, 926 N.Y.S.2d 408 ; Chuchuca v. Chuchuca, 67 A.D.3d 948, 950, 890 N.Y.S.2d 573 ; Metling v. Punia & Marx, 303 A.D.2d 386, 388, 756 N.Y.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT