Jones v. City of New York

• Decision Date: 14 September 2006
• Docket Number: 8210.
• Citation: 2006 NY Slip Op 06469,32 A.D.3d 706,821 N.Y.S.2d 548
• Parties: ANDRE JONES, Respondent, v. CITY OF NEW YORK, Defendant, and 34TH STREET PARTNERSHIP, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 706

821 N.Y.S.2d 548

2006 NY Slip Op 06469

ANDRE JONES, Respondent, v. CITY OF NEW YORK, Defendant, and 34TH STREET PARTNERSHIP, INC., Appellant.

8210.

Appellate Division of the Supreme Court of the State of New York, First Department.

September 14, 2006.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered November 28, 2005, which, to the extent appealed from, denied the motion by defendant 34th Street Partnership, Inc. (34th Street) for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of 34th Street dismissing the complaint.

Plaintiff alleges that a pedestrian, in the process of squeezing herself between a pole and a metal garbage can, tipped the can over onto plaintiff's right foot. The garbage can, which was freestanding and weighed between 75 and 80 pounds, was one of several in the area owned by defendant 34th Street, an entity that supplements municipal services in the business improvement district in which the subject incident occurred. Plaintiff contends that the garbage can should have been chained or otherwise anchored to the sidewalk to prevent it from being knocked over.

In support of its motion for summary judgment, 34th Street submitted, inter alia, the transcript of the deposition of its agent, Donald Bussolini. Bussolini testified that, when the garbage cans were installed, 34th Street decided, after consideration, that it was not necessary to anchor the cans to the sidewalk, since they appeared to be heavy enough to make it unlikely that they would be knocked over either by a person or by the wind. In the course of considering whether to anchor the cans, Bussolini physically maneuvered one of them. After the cans were installed, Bussolini did not hear of any of them being knocked over until plaintiff's accident occurred approximately seven years later.

In opposition, plaintiff submitted the purported expert affidavit of Stanley H. Fein, a licensed professional engineer who did not indicate his area of specialization. In his affidavit, Fein asserted that it was "unsafe" to have a garbage can of the size in question "freestanding on a public sidewalk," and that "[g]ood and accepted engineering safety practice requires that the trash receptacle be anchored to the sidewalk." Fein did not offer any supporting data to establish the likelihood of the can's being knocked over, nor did he...