Spector v. Cushman & Wakefield Inc.

• Decision Date: 04 August 2011
• Court: New York Supreme Court — Appellate Division
• Parties: Linda SPECTOR, et al., Plaintiffs–Appellants,v.CUSHMAN & WAKEFIELD, INC., et al., Defendants,Citibank, N.A., Defendant–Respondent.

87 A.D.3d 422
928 N.Y.S.2d 9
2011 N.Y. Slip Op. 06189

Linda SPECTOR, et al., Plaintiffs–Appellants,
v.
CUSHMAN & WAKEFIELD, INC., et al., Defendants,Citibank, N.A., Defendant–Respondent.

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

Aug. 4, 2011.

[928 N.Y.S.2d 10]

Weitz & Luxenberg, P.C., New York (Herman Kaufman of counsel), for appellants.White & McSpedon, P.C., New York (Joseph W. Sands of counsel), for respondent.TOM, J.P., ACOSTA, RENWICK, DeGRASSE, JJ.

[87 A.D.3d 422] Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered January 27, 2010, which, insofar as appealed from as limited by the briefs, granted defendant Citibank, N.A.'s motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion denied.

[87 A.D.3d 423] Citibank failed to make a prima facie showing of entitlement to judgment as a matter of law. The injured plaintiff allegedly slipped on a patch of black ice on the sidewalk abutting Citibank's premises. Because Citibank did not refute plaintiffs' contention that the dangerous condition existed, it was required to establish that it did not cause or create the condition or have actual or constructive notice of it ( see Lebron v. Napa Realty Corp., 65 A.D.3d 436, 437, 884 N.Y.S.2d 37 [2009] ). Citibank has failed to meet its burden with respect to actual or constructive notice of the ice because it proffered no affidavit or testimony based on personal knowledge as to when its employees last inspected the sidewalk or the sidewalk's condition before the accident. This Court has employed similar reasoning with respect to other summary judgment motions made under analogous facts ( see De La Cruz v. Lettera Sign & Elec. Co., 77 A.D.3d 566, 909 N.Y.S.2d 448 [2010]; Lebron at 437, 884 N.Y.S.2d 37). The other departments have done the same ( see Rogers v. Niagara Falls Bridge Commn., 79 A.D.3d 1637, 914 N.Y.S.2d 539 [2010]; Mignogna v. 7–Eleven, Inc., 76 A.D.3d 1054, 908 N.Y.S.2d 258 [2010]; Managault v. Rensselaer Polytechnic Inst., 62 A.D.3d 1196, 879 N.Y.S.2d 612 [2009] ). By contrast, in Rodriguez v. 705–7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 913 N.Y.S.2d 189 [2010], we affirmed an order granting an owner's summary judgment motion on the basis of a record that included testimony by the owner's president that he had checked the area of the subject accident on the preceding night ( id. at 519–520, 913 N.Y.S.2d 189).

Lenti v. Initial Cleaning Servs., Inc., 52 A.D.3d 288, 860 N.Y.S.2d 42 [2008], which the dissent cites, is distinguishable because it involved a snow removal contractor's motion for summary judgment. Unlike a contractor, an owner, such as Citibank,...