Stoloyvitskaya v Dennis Boardwalk, LLC

Stoloyvitskaya v Dennis Boardwalk, LLC 2012 NY Slip Op 09047 Decided on December 26, 2012 Appellate Division, Second 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 December 26, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
PLUMMER E. LOTT
LEONARD B. AUSTIN, JJ.
2011-02025
(Index No. 31777/08)

[*1]Lilya Stoloyvitskaya, appellant,

v

Dennis Boardwalk, LLC, respondent, et al., defendant.




Berkman Law Office, LLC, Brooklyn, N.Y. (Daniel Shimko of
counsel), for appellant.
Hoey, Kings, Epstein, Prezioso & Marquez, New York, N.Y.
(Richard C. Prezioso and Richard
Freire of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Kings County (Miller, J.), entered January 25, 2011, as, upon an order of the same court dated December 17, 2009, inter alia, granting that branch of the cross motion of the defendant Dennis Boardwalk, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it, is in favor of the defendant Dennis Boardwalk, LLC, and against her, dismissing the complaint insofar as asserted that defendant.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff was walking along the Coney Island boardwalk when she allegedly tripped and fell over a defective condition in the boardwalk, sustaining injuries. At the location of the accident, premises owned by the defendant Dennis Boardwalk, LLC (hereinafter Dennis), were on one side of the boardwalk, and the beach was on the other side of the boardwalk. The plaintiff commenced this action against Dennis and the defendant City of New York. Dennis cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, contending that it had no duty to maintain the boardwalk abutting its premises since it was not a sidewalk within the meaning of the Administrative Code of the City of New York § 7-210 (see Administrative Code of City of NY § 7-210).

"Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner" (Pevzner v 1397 E. 2nd, LLC, 96 AD3d 921, 922; see Vucetovic v Epsom Downs, Inc., 10 NY3d 517; Fusco v City of New York, 71 AD3d 1083, 1084). "[T]he language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123" (Vucetovic v Epsom Downs, Inc., 10 NY3d at 521 [internal quotation marks omitted]; see Harakidas v City of New York, 86 AD3d 624, 626). Although section 7-210 of the Administrative Code does not define the term "sidewalk," section 19-101(d) of the Administrative Code describes a sidewalk as "that portion of [*2]a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." The boardwalk at issue did not abut a roadway, and Dennis established, prima facie, that the subject boardwalk was not a sidewalk within the meaning of section 7-210 of the Administrative Code.

In opposition, the plaintiff failed to raise a triable issue of fact (see Camacho v City of New York, 96 AD3d 795, 796; Rodriguez v Themelion Realty Corp., 94 AD3d 733, 733; Moreno v Shanker, 93 AD3d 829). Accordingly, the Supreme Court properly granted that branch of Dennis's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it.

The plaintiffs' remaining contentions are improperly raised for the first time on appeal.
MASTRO, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court