Dorland v Croman

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Dorland v Croman 2012 NY Slip Op 33233(U) October 3, 2012 Sup Ct, New York County Docket Number: 103607/10 Judge: Barbara Jaffe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 10/10/2012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY j PART _ _ PRESENT: Justice Index Number: 103607/2010 DORLAND, BONITA vs. CROMAN, STEVEN SEQUENCENUMBER:001 DISMISS C:::, .A (.. ¢ INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. - - - l+- '1-""J The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ I No(s). __._/_ _ _ __ I No(s). _·~....+-=3'----I I No(s). __,.f-1------ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 9 Upon ttae foregoing pape~, !t !s ordered that th!s motion !s w 0 ti g DEC!Oi:D !N t\GCOROt\NCE WITH :::> .., ACCO~fiPANYH\!G oc:c.mtdi /~~EE c w a:: a:: w D OCT. 0 9. 201Z. LL. w .NEW YORK a:: >;..:. ..J ~ ..J z COUNTY Ci.l:MSOfft(;Jt :::> 0 LL. ·- "' t; ~ ¢· ................ __ _...:) w a:: g, w a:: w C> z i !l 0 ..J "' 0 c( ..J 0 u. - :c z w 0 ~ I- a:: ~~ 1. CHECK ONE: ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED foENIED 3. CHECK 1F APPROPRIATE: ................................................ DsETTLE ORDER 0DONOTPOST 0 SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 --------------------------------------------------------------------x BONITA DORLAND, Index No. 103607/10 Plaintiff, Argued: Motion seq. no.: 5/29112 001 -againstDECISION AND ORDER STEVEN CROMAN, HARRIET CROMAN, EDWARD CROMAN, CROMAN REAL ESTATE, INC., and THE CITY OF NEW YORK, Fl LED Defendants. OCT. 0 9. 2012, --------------------------------------------------------------------x BARBARA JAFFE, JSC: #NEWVORK For plaintiff: ~~Qf:FJCE For City: Gregory P. Haegele, Esq. Law Office of Steven Smedresman, P. C. 41 Madison Ave., 40'h Fl. New York, NY 10010 Michael Nacchio, ACC Michael A. Cardozo Corporation Counsel I 00 Church St. New York, NY 10007 212-267-1950 James V, Sawicki, Esq, Gannon Rosenfarb et a/, 100 William St., 7th FL New York, NY 10038 212-655-5000 212-788-0627 By notice of motion dated January 31, 2012, defendant City moves pursuant to CPLR 321 l(a)(7) and/or 3212 for an order summarily dismissing the complaint and any cross claims against it. Plaintiff and defendants Steven Croman, Harriet Croman, Edward Croman, and Croman Real Estate, Inc. oppose. In her notice of claim served on City on May 13, 2009, plaintiff alleges that on April 10, 2009, she tripped and fell on the sidewalk in front of 12A E. 72nd Street in Manhattan (the premises), and that: the incident occurred at an area of sidewalk directly adjacent to the curb, approximately 3 feet east of the northeast corner of a rectangle formed by a tree planter cutout in the sidewalk directly in front of said premises, when the claimant was precipitated violently to the ground when her foot became wedged in a dangerous crack in the sidewalk at the location described ... The crack was between· 1 and 2 inches wide and approximately 30 inches long running along the length of the curb/sidewalk transition. [* 3] (Affirmation of Michael Nacchio, ACC, dated Jan. 31, 2012 [Nacchio Aff.], Exh. A). In plaintiffs complaint dated March 18, 2010, plaintiff again alleges that she fell on the sidewalk and curb in front of the premises. A Big Apple Map (Map) annexed to the complaint reflects an "extended section of broken, misaligned, or uneven curb" in front of the premises. (Id., Exh. B). At a 50-h hearing held on October 29, 2009, plaintiff testified, as pertinent here, that the defect which caused her fall was located in an area between the curbstone and a space between two sidewalk flags. Pictures taken of the location reflect a large crack or area of eroded concrete located at the intersection of the curbstone and two sidewalk flags, with the crack/erosion extending into both the curb and the flags. (Id., Exh. E). While City argues that it may not be held liable to plaintiff as it was not responsible for maintaining the sidewalk in front of the premises, plaintiffs testimony and photographs show that the defect at issue extended into both the sidewalk and the abutting curbstone, and City may be held liable for a defect on a curb. (Administrative Code § 19-101 [d] [definition of sidewalk does not include curb]; Alleyne v City of New York, 89 AD3d 970 [2d Dept 2012] [City may be held liable for defective condition on curb]; Garris v City of New York, 65 AD3d 953 [1st Dept 2009] [as property owner not obligated to maintain curb, it was not liable to plaintiff]). Moreover, the Map reflects the existence of a broken or uneven curb in front of the premises, which constitutes prior written notice to City. (Burwell v City ofNew York, 97 AD3d 617 [2d Dept 2012]; Puello v City of New York, 90 AD3d 529 [!51 Dept 2011]). Thus, City has failed to demonstrate,primafacie, that it may not be held liable to plaintiff here. Accordingly, it is hereby 2 [* 4] ORDERED, that defendant City of New York's motion to dismiss is denied. ENTER: DATED: October 3, 2012 New York, New York :ocr o 3 zo1z F1Lt:: 0 r ~ 3 r.

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