Harvey v Henry 85 LLC

Harvey v Henry 85 LLC 2019 NY Slip Op 07210 Decided on October 8, 2019 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 October 8, 2019
Acosta, P.J., Manzanet-Daniels, Mazzarelli, Webber, Moulton, JJ.
9905 158576/14

[*1]Lynne Harvey, Plaintiff-Appellant,

v

Henry 85 LLC, Defendant-Respondent, 4G Data Systems, Inc., et al., Defendants.

Sullivan Papain Block McGrath & Cannavo P.C., New York (Christopher J. DelliCarpini of counsel), for appellant.

Mauro Lilling Naparty LLP, Woodbury (Jennifer B. Ettenger of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered October 17, 2018, which granted the motion of defendant Henry 85 LLC for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.

Defendant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff was injured when she tripped and fell on a defective condition in a sidewalk pedestrian handicap ramp in the sidewalk adjacent to defendant's premises. Although a landowner is responsible for maintaining abutting sidewalks (see Administrative Code of City of NY § 7—210), it is not responsible for maintaining pedestrian ramps unless it created the defect or the ramp was constructed for its special use (see Gary v 101 Owners Corp., 89 AD3d 627 [1st Dept 2011]).

Here, defendant failed to meet its initial burden of demonstrating that it did not create the defective condition. In relying on the deposition testimony of the building's superintendent, defendant only pointed to the gaps in plaintiff's proof instead of carrying its own burden on the motion (see e.g. Torres v Merrill Lynch Purch., 95 AD3d 741, 742 [1st Dept 2012]; Bryan v 250 Church Assoc., LLC, 60 AD3d 578 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 8, 2019

CLERK