Cortwright v City of New York

Cortwright v City of New York 2009 NY Slip Op 09518 [68 AD3d 611] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Maria Ramos Cortwright et al., Respondents,
v
City of New York, Respondent, CVS Pharmacy, Inc., Respondent-Appellant/Third-Party Plaintiff, and 2112 White Plains Road, LLC, et al., Appellants-Respondents. Trammell Crow Corporate Services, Inc., Third-Party Defendant-Respondent.

—[*1] Law Office of Lori D. Fishman, Tarrytown (Michael J. Latini of counsel), for appellants-respondents.

McAndrew, Conboy & Prisco, LLP, Woodbury (Yasmin D. Soto of counsel), for respondent-appellant.

Silberstein, Awad & Miklos, P.C., Garden City (Dana E. Heitz of counsel), for Maria Ramos Cortwright and Mohammad Malik, respondents.

Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for municipal respondent.

White, Quinlan & Staley, L.L.P, Garden City (Eileen Farrell of counsel), for Trammell Crow Corporate Services, Inc., respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 11, 2008, which, to the extent appealed from, denied the motions by defendants 2112 White Plains Road, LLC, ACHS Management Corp. and CVS Pharmacy, Inc., for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant the motion by 2112 White [*2]Plains Road and ACHS Management, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendants 2112 White Plains Road, LLC and ACHS Management Corp. dismissing the complaint as against them.

Defendants 2112 White Plains Road and ACHS Management established prima facie that they neither created a defective condition in the sidewalk nor used the sidewalk for a special purpose (see Romero v ELJ Realty Corp., 38 AD3d 263 [2007]). ACHS's senior property manager testified that ACHS had no record of any sidewalk maintenance performed by ACHS in front of the CVS Pharmacy store where plaintiff Cortwright allegedly slipped and fell on the ramp in the curb. In opposition, plaintiffs offered no evidence to support either their allegation that 2112 and ACHS may have undertaken such a repair or their contention that 2112 and ACHS used the public sidewalk for their own special benefit (see Balsam v Delma Eng'g Corp., 139 AD2d 292, 298-299 [1988], lv dismissed in part and denied in part 73 NY2d 783 [1988]).

However, issues of fact remain whether defendant CVS Pharmacy engaged in repair work that may have created a defective condition that caused the accident, in light of CVS's allegation that third-party defendant Trammell Crow Corporate Services, which has not yet been deposed, negligently repaired the sidewalk where the accident occurred and the record evidence that before the accident CVS had made one call concerning the sidewalk on the "fixed line" it maintained for requesting repairs (see George v New York City Tr. Auth., 306 AD2d 160 [2003]). Concur—Gonzalez, P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ.