Rodriguez v E&P Assoc.

Rodriguez v E&P Assoc. 2010 NY Slip Op 01686 [71 AD3d 405] March 2, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Ivan Rodriguez, Appellant,
v
E&P Associates et al., Respondents. (And a Third-Party Action.)

—[*1] Law Offices of Anthony V. Gentile, Brooklyn (Anthony V. Gentile of counsel), for appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Andrew Funk of counsel), for E&P Associates, Wayne Eisenbaum, Phyllis Cohen, Dyker Associates, Dyker Associates, Inc., AMPM Enterprises LLC., AMPM Enterprises and Alan J. Helene, respondents.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Joanna M. Topping of counsel), for Modell's respondents.

Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset (Anton Piotroski of counsel), for Mayer Equity, Inc. and Emil Mayer, respondents.

Law Office of Lori D. Fishman, Tarrytown (Louis H. Liotti of counsel), for Nicholas Para, Inc. and Nicholas Parascondola, respondents.

Sinnreich Kosakoff & Messina LLP, Central Islip (Annalee Cataldo-Barile of counsel), for Leonard Colchamiro, P.C. and Leonard Colchamiro, respondents.

Order, Supreme Court, Bronx County (Nelson S. RomÁn, J.), entered August 14, 2008, which granted the summary judgment motions of all but the Modell's defendants to dismiss the complaint, and denied plaintiff's cross motion for summary judgment against all defendants, unanimously affirmed, without costs.

The evidence established that defendants did not create a dangerous or blatantly defective condition in constructing a non-weight-bearing window ledge, which collapsed and through which plaintiff fell. The renovation plans, which incorporated plans for the interior build-out by lessee Modell's, did not specify that the area abutting the window was to be weight-bearing, and absent any such instruction from Modell's, there was no basis for designing or building the window ledge to be weight-bearing. The evidence suggesting that the window might be used to display signs, or that the ledge might be used as a display, was not sufficient to put any defendant on notice that the ledge would be used to stand or walk on, and that they were creating a dangerous condition in constructing a non-weight-bearing ledge (see Diaz v Vasques, 17 AD3d [*2]134, 135 [2005], lv denied sub nom. Boggio v Yonkers Contr. Co., 5 NY3d 706 [2005]).

Nor did plaintiff submit evidence sufficient to raise an issue of fact as to whether the allegedly dangerous condition was a structural defect in violation of the New York City Building Code. Absent a showing of a dangerous condition or code violation that might have supported a finding of negligence per se, plaintiff's cross motion for partial summary judgment, which was untimely filed, was properly denied. Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and Abdus-Salaam, JJ.