Rivera v. City of N.Y.

• Decision Date: 17 November 2022
• Docket Number: 16697,Index No. 160599/18,Case No. 2021-01830
• Citation: 210 A.D.3d 544,179 N.Y.S.3d 27
• Parties: Carmen RIVERA, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant, Acacia Gardens Housing Development Fund Company Inc. et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 544

179 N.Y.S.3d 27

Carmen RIVERA, Plaintiff–Appellant,

v.CITY OF NEW YORK, Defendant,Acacia Gardens Housing Development Fund Company Inc. et al., Defendants–Respondents.

16697

Index No. 160599/18

Case No. 2021-01830

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

Entered November 17, 2022

Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant.

Winget, Spadafora & Schwartzberg, LLP, New York (Kenneth A. McLellan of counsel), for Lettire Construction Corp., respondent.

Kapnick, J.P., Webber, Friedman, Gesmer, Singh, JJ.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered May 18, 2021, which, to the extent appealed from, granted defendant Acacia Gardens Housing Development Fund Company, Inc.’s motion for summary judgment dismissing the complaint as against it and searched the record to grant defendant Lettire Construction Corp. summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

In this action to recover damages for an injury resulting from a trip and fall that allegedly occurred on October 18, 2017, at approximately 9:30 p.m., on the "roadway" "in front of 413 East 120th Street," in Manhattan, plaintiff testified during her General Municipal Law § 50–h hearing that prior to stepping up onto the sidewalk, her leg twisted. After the incident, she looked down and observed a "dent" on the street, which she described as "not level."

The court correctly found that Acacia established prima facie entitlement to summary judgment based on plaintiff's 50–h testimony, as well as the affidavit of its senior project manager, which indicated that it had contracted with Lettire to construct an apartment building at its property located at 409 East 120th Street, which shared a common property line with 413 East 120th Street. At no time did Acacia create or cause to be created a temporary sidewalk at or near the subject premises or perform or cause to be performed any work in the roadway where plaintiff alleged that her accident occurred (see Johnson v. City of New York, 106 A.D.3d 664, 664–665, 966 N.Y.S.2d 408 [1st Dept. 2013] ).

Defendants Promesa Inc., individually and doing business as Acacia Network and East Harlem Counsel for Community Improvements, Inc. joined in Acacia's arguments and moved for summary judgment dismissing the complaint as against them; plaintiff did not oppose their motion.

Plaintiff failed to raise a triable issue of fact in opposition. Plai...