Trawinski v. Jabir & Farag Props., LLC

• Decision Date: 25 October 2017
• Docket Number: 2016-04357, Index No. 507016/13.
• Citation: 154 A.D.3d 991,63 N.Y.S.3d 431
• Parties: Carolyn J. TRAWINSKI, appellant, v. JABIR & FARAG PROPERTIES, LLC, et al., defendants, City of New York, et al., respondents.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 991

63 N.Y.S.3d 431

Carolyn J. TRAWINSKI, appellant,

v.JABIR & FARAG PROPERTIES, LLC, et al., defendants,City of New York, et al., respondents.

2016-04357, Index No. 507016/13.

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

Oct. 25, 2017.

Morgan Levine Dolan, P.C., New York, NY (Glenn P. Dolan of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Fay S. Ng and Janet L. Zaleon of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated February 17, 2016, as denied that branch of her motion which was for leave to renew and reargue her opposition to that branch of the prior motion of the defendants City of New York and Department of Transportation of the City of New York which was for summary judgment dismissing the complaint insofar as asserted against them, which had been granted in an order of the same court dated December 12, 2014.

ORDERED that the appeal from so much of the order dated February 17, 2016, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated February 17, 2016, is reversed insofar as reviewed, on the law, that branch of the plaintiff's motion which was for leave to renew is granted, and, upon renewal

, so much of the order dated December 12, 2014, as granted that branch of the motion of the defendants City of New York and Department of Transportation of the City of New York which was for summary judgment dismissing the complaint insofar as asserted against them is vacated, and that branch of the motion of the defendants City of New York and Department of Transportation of the City of New York is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On November 11, 2013, the plaintiff filed a complaint alleging, inter alia, that the defendants City of New York and Department of Transportation of the City of New York (hereinafter the DOT; hereinafter together the NYC defendants) were liable for injuries that she incurred on June 18, 2013, after falling on a sidewalk adjacent to the side entrance of a mixed residential/commercial property located in Brooklyn. At a hearing held pursuant to section 50–h of the General Municipal Law, the plaintiff testified that the sidewalk was wet due to rain and she fell because of "the decline of the sidewalk" which "was at a relatively sharp angle versus other sidewalks" and caused her to "basically slid[e] down on it." The plaintiff asserted, among other things, that the NYC defendants negligently designed the subject sidewalk.

Thereafter, the NYC defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them on the grounds that, (1) pursuant to Administrative Code of the City of New York (hereinafter Administrative Code) § 7–210, the adjoining property owner, not the NYC defendants, would be responsible for any accidents allegedly caused by a negligent failure to maintain the subject sidewalk, and (2) the documents they submitted in support of their motion, consisting of searches by the DOT for permits, complaints, repair orders, and contracts relating to work at the subject sidewalk location for a two-year period prior to and including the day of the accident, established that they did not affirmatively create the condition at issue. In opposition, the plaintiff contended that that branch of the motion should be denied because, among other things, the NYC defendants failed to establish that they did not affirmatively create the defective condition and the motion was premature because discovery had not yet been conducted. The plaintiff contended that on or about December 8, 2014, she had filed a Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) request for documents from the DOT pertaining to the subject sidewalk but had not yet received any documents. The plaintiff also submitted an affidavit of a professionalengineer who opined that the "combination of the smooth polished granite and excessive slope constitutes a slipping hazard that was a...