Gary v 101 Owners Corp.

Gary v 101 Owners Corp. 2011 NY Slip Op 08631 Decided on November 29, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 29, 2011
Friedman, J.P., Catterson, Moskowitz, Freedman, Abdus-Salaam, JJ.
5880 106841/08

[*1]Ann Pearl Gary, Plaintiff-Respondent,

v

101 Owners Corp., Defendant-Appellant.




Lester Schwab Katz & Dwyer, LLP, New York (Howard R.
Cohen of counsel), for appellant.
Diamond and Diamond LLC, New York (Stuart Diamond of
counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered January 5, 2011, which, in a personal injury action, denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

In February 2008, plaintiff tripped and fell while walking from the street onto the sidewalk at the corner of Stanton and Ludlow Streets in New York City. Using plaintiff's testimony and photographs, defendant established that it was entitled to summary judgment because plaintiff did not trip on the sidewalk flag abutting defendant's property; instead, plaintiff stumbled on either a crack running through the adjacent pedestrian ramp, or against the edge of the sidewalk flag, which had been exposed when the bordering edge of the ramp sagged below the flag, possibly after the ramp cracked.

While New York City landowners are responsible for maintaining sidewalk flags that abut their property (Administrative Code of City of New York § 7-210; see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 519-520 [2008]), a landowner is not liable for a defect in a pedestrian ramp leading from the street onto a sidewalk unless the landowner created the defect or the ramp was constructed for its special use (see Ortiz v City of New York, 67 AD3d 21, 27-28 [2009], revd on other grounds 14 NY3d 779 [2010]; Vidakovic v City of New York, 84 AD3d 1357, 1358 [2011]).

The defective ramp and not a defect in the flag caused plaintiff's injury. Plaintiff does [*2]not claim that defendant's activity created the defect in the ramp or that it was constructed for defendant's special use. Thus, summary judgment should have been granted to defendant.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2011

CLERK