Leary v Dallas BBQ

Leary v Dallas BBQ 2012 NY Slip Op 00295 Decided on January 19, 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 January 19, 2012
Andrias, J.P., Sweeny, Moskowitz, Renwick, Freedman, JJ.
6576 114242/07

[*1]Susan Leary, Plaintiff-Appellant,

v

Dallas BBQ, et al., Defendants-Respondents, The City of New York, et al., Defendants.




Shapiro Law Offices, PLLC, Bronx (Ernest S. Buonocore of
counsel), for appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas
P. Hurzeler of counsel), for respondents.

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered January 27, 2011, which, to the extent appealed from, granted defendants-respondents' (Dallas BBQ) motion for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

The motion court properly granted Dallas BBQ's summary judgment motion in this action for personal injuries allegedly sustained after plaintiff tripped and fell over a segment of a wooden police barricade lying on the sidewalk near the northwest intersection of 23rd Street and Eighth Avenue in Manhattan. Dallas BBQ, lessee of the premises near the intersection, established, prima facie, its entitlement to summary judgment. It was neither abutting owner for purposes of the Administrative Code of City of NY 7-210 nor did it create or have constructive notice of the condition, and it owed no duty to plaintiff for the maintenance of the abutting sidewalk under the alleged circumstances (see Collado v Cruz, 81 AD3d 542 [2011]; Berkowitz v Dayton Constr., 2 AD3d 764, 765 [2003]). In opposition, plaintiff failed to raise a triable issue of fact as to any theory of duty on the part of Dallas BBQ.

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

ENTERED: JANUARY 19, 2012

CLERK