Mendoza v City of New York

Mendoza v City of New York 2017 NY Slip Op 03911 Decided on May 16, 2017 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 May 16, 2017
Friedman, J.P., Richter, Moskowitz, Gische, Kapnick, JJ.
4037 20141/13

[*1]Miguel Angel Mendoza, et al., Plaintiffs-Respondents,

v

The City of New York, et al., Defendants-Appellants, Hunts Point Terminal Market Inc., et al, Inc., Defendants.

Weiser & McCarthy, New York (David P. Weiser of counsel), for appellants.

Glenn Finley & Associates, Bronx (Glenn Finley of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered August 15, 2016, which denied defendants the City of New York, the New York City Economic Development Corporation, and the New York City Department of Small Business Services' 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 accordingly.

As an initial matter, plaintiffs do not challenge defendants' contention that the New York City Economic Development Corporation, and the New York City Department of Small Business Services are not proper parties to this action, and the complaint should have been dismissed as to these defendants.

We find that the City was entitled to summary judgment because it was an out-of-possession landlord that was not responsible for the repair or maintenance of the area where plaintiff Miguel Angel Mendoza's accident occurred, and plaintiffs failed to submit any evidence to raise an issue of fact as to whether the area where the accident occurred constituted a structural defect (see Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 420 [1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 16, 2017

CLERK