Rivera v City of New York

Rivera v City of New York 2008 NY Slip Op 09701 [57 AD3d 281] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Emily Rivera, Respondent,
v
City of New York, Defendant, and New York City Housing Authority, Appellant and Third-Party Plaintiff-Appellant. Gazebo Contracting, Inc., Third-Party Defendant-Respondent.

—[*1] Cullen and Dykman LLP, Brooklyn (Joseph Miller of counsel), for appellant.

Napoli Bern Ripka, LLP, New York (Denise A. Rubin of counsel), for Emily Rivera, respondent.

Daniel J. Sweeney, White Plains, for Gazebo Contracting, Inc., respondent.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered December 21, 2007, which, in an action for personal injuries sustained in a trip and fall over a speed bump on premises owned and managed by defendant, insofar as appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, and granted third-party defendant asphalt contractor's motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to grant defendant's motion for summary judgment, and otherwise affirmed, without costs. The Clerk is directed to enter a judgment dismissing the complaint and third-party complaint.

The speed bump is located on a pedestrian walkway leading from the front door of the building where plaintiff's sister lives. Although it was nighttime when plaintiff exited the building, the lights in the building's hallway were on, as were nearby street lights. Defendant established its prima facie entitlement to summary judgment by showing that the speed bump was plainly observable and did not pose any danger to someone making reasonable use of his or her senses. A photograph of the scene depicts a speed bump spanning the width of the walkway plainly visible in the illumination cast by two nearby street lights (see Tagle v Jakob, 97 NY2d 165, 169-170 [2001]; Garrido v City of New York, 9 AD3d 267 [2004]). In opposition, plaintiff [*2]failed to adduce evidence sufficient to raise an issue of fact as to the existence of a dangerous or defective condition on the walkway (see Bastone v 1144 Yonkers Ave., 266 AD2d 327 [1999], lv denied 97 NY2d 605 [2001]; Delia v 1586 N. Blvd. Co., LLC, 27 AD3d 269 [2006]). The third-party complaint for common-law and contractual indemnification was properly dismissed on a finding that third-party defendant contractor never performed any work on the speed bump. Concur—Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ.