Garcia v City of New York

Garcia v City of New York 2012 NY Slip Op 06757 Decided on October 9, 2012 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 October 9, 2012
Saxe, J.P., Sweeny, Richter, Abdus-Salaam, JJ.
301213/08 8248A 83971/08

[*1]8248-Francisco Garcia, Plaintiff-Appellant-Respondent,

v

The City of New York, et al., Defendants-Respondents, Safeway Construction Enterprises, Inc., Defendant-Respondent-Appellant. _ _ _ _ _ And a Third Party Action




Robin Mary Heaney, Rockville Centre, for appellant-
respondent.
Rafter & Associates PLLC, New York (Howard K. Fishman of
counsel), for respondent-appellant.
Law Office of Richard W. Babinecz, New York (Stephen T.
Brewi of counsel), for The City of New York and Consolidated
Edison Company of New York, Inc., respondents.
Jeffrey M. Schwartz, New Rochelle, for 1515 Bruckner Blvd.,
LLC, and Citywide Contractors LLC, respondents.
Goldberg Segalla, LLP, White Plains (William T. O'Connell of
counsel), for Kaila Construction Corporation, respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered June 28, 2011, which, to the extent appealed from as limited by the briefs, granted defendant 1515 Bruckner's motion and defendant Kaila's cross motion for summary judgment, dismissing all claims and cross claims as against them, and denied defendant Safeway's cross motion for summary judgment, unanimously modified, on the law, to deny 1515 Bruckner's motion, and otherwise affirmed, without costs. Order, same court and Justice and entry date, which, to the extent appealed from as limited by the briefs, granted the motion of defendant City and third-party plaintiff Consolidated Edison to vacate the court's May 27, 2011 order striking the City's answer, unanimously affirmed, without costs.

Supreme Court properly granted summary judgment to subcontractor Kaila, in this trip-and-fall action, since there is no evidence in the record that it caused or created the defective condition of the sidewalk (see Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011]; Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [1st Dept 2008]). The [*2]deposition testimony and affidavit of Kaila's principal stating that Kaila did not replace the sidewalk until around several months after plaintiff's accident were sufficient to establish its prima facie entitlement to judgment as a matter of law. In opposition, plaintiff and Safeway failed to raise a triable issue of fact.

Supreme Court, however, improperly granted 1515 Bruckner's motion for summary judgment. As the owner of the property abutting the sidewalk, 1515 Bruckner was responsible for maintaining the sidewalk in a reasonably safe condition (Administrative Code of City of NY § 7-201[a]). On a motion for summary judgment, a property owner has the initial burden of demonstrating that it neither created the defective condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (Khaimova v City of New York, 95 AD3d 1280, 1282 [2012]). Here, in its summary judgment motion, 1515 Bruckner failed to demonstrate that it did not have actual or constructive notice of the defective condition (see Spector v Cushman & Wakefield, Inc., 87 AD3d 422, 423 [2011]).

Safeway's cross motion for summary judgment was properly denied, since issues of fact exist as to whether Safeway, as the excavation contractor, actually made cuts in the sidewalk and replaced that area of the sidewalk with a metal plate and asphalt, creating the allegedly dangerous condition (see Barbitsch v City of New York, 241 AD2d 472 [1st Dept 1997]).

The City provided both a reasonable excuse and a meritorious defense to the action to warrant vacatur of the court's order striking its answer and imposition of a lesser sanction of $5000 in costs (see Catarene v Beth Israel Med. Ctr., 290 AD2d 213 [1st Dept 2002]). The City explained that it had failed to comply with court-ordered discovery due, in large part, to its inability to obtain the identity of the emergency medical technicians who responded to the scene of plaintiff's accident. Con Edison, which agreed to defend and indemnify the City, also expended various efforts in attempting to obtain the necessary information. Further, Con Edison, which has not defaulted in providing discovery, would be unfairly penalized if the City's answer is stricken (see McGarr v Guardian Life Ins. Co. of Am., 19 AD3d 254, 256-257 [1st Dept 2005]; see also Magee v City of New York, 242 AD2d 239, 239-240 [1st Dept 1997]).

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

ENTERED: OCTOBER 9, 2012

CLERK