Harakidas v. City of N.Y.

• Decision Date: 26 July 2011
• Citation: 86 A.D.3d 624,927 N.Y.S.2d 673,2011 N.Y. Slip Op. 06093
• Parties: Maria HARAKIDAS, et al., appellants,v.CITY OF NEW YORK, et al., defendants,Brazal South Holdings, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 624
927 N.Y.S.2d 673
2011 N.Y. Slip Op. 06093

Maria HARAKIDAS, et al., appellants,
v.
CITY OF NEW YORK, et al., defendants,Brazal South Holdings, LLC, respondent.

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

July 26, 2011.

[927 N.Y.S.2d 674]

Argyropoulos & Bender, Astoria, N.Y. (Susan E. Paulovich of counsel), for appellants.Cheng & Associates, PLLC, Long Island City, N.Y. (Pui Chi Cheng of counsel), for respondent.DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and ROBERT J. MILLER, JJ.

[927 N.Y.S.2d 675 , 86 A.D.3d 624]

In a consolidated action to recover damages for personal [86 A.D.3d 625] injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), entered May 7, 2009, as granted that branch of the motion of the defendant Brazal South Holdings, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Brazal South Holdings, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it is denied.

The plaintiffs alleged that on June 2, 2005, Maria Harakidas (hereinafter the injured plaintiff) was injured when she tripped and fell on a depressed and defective portion of the sidewalk abutting property of the defendant Brazal South Holdings, LLC (hereinafter Brazal). The area in question is a rectangular depression with an irregular asphalt surface approximately the size of a sidewalk flag in which a fire hydrant is situated close to one edge next to the curb. The injured plaintiff and her husband, suing derivatively, commenced an action against Brazal, and a separate action against the defendants City of New York, Department of Water and Sewer, Department of Environmental Protection (hereinafter the DEP), and Environmental Control Board (hereinafter collectively the City). The two actions were consolidated. After discovery, Brazal moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, contending that it was not liable as a matter of law because the City affirmatively created the alleged defect in the sidewalk.

In deposition transcripts submitted by Brazal in support of its motion, the injured plaintiff testified that her foot became caught in a “hole,” which she described as an area of the cement near a fire hydrant lower than the rest of the sidewalk. Brazal's owner testified at her deposition that she visited the property regularly from 2003 through 2005. On a date she could not recall, she complained of the broken fire hydrant by a letter to the City, which subsequently repaired the hydrant but failed to finish the job by making the sidewalk “smooth and safe.” Nick Tenaglia, a supervisor employed by the DEP, testified that the DEP was primarily responsible for investigating problems with City fire hydrants and making needed repairs. Tenaglia reviewed DEP...