Fernandez v 2265 E. Tremont Realty, LLC

Fernandez v 2265 E. Tremont Realty, LLC 2020 NY Slip Op 06710 Decided on November 17, 2020 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 and Entered: November 17, 2020
Before: Friedman, J.P., Renwick, Webber, González, JJ.
Index No. 20482/18E Appeal No. 12391 Case No. 2020-01650

[*1]Edwin Fernandez, Plaintiff-Respondent,

v

2265 East Tremont Realty, LLC, et al., Defendants-Appellants.

Law Office of Brian Rayhill, New York (Renaud T. Bleecker of counsel), for appellants.

Krentsel Guzman Herbert, LLP, New York (Marcia K. Raicus of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J,), entered August 12, 2019, which denied defendants' 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.

Plaintiff identified the spot where he fell using photographs of the area to which he testified accurately depicted the condition. Although under AdministrativeCode § 7-210 abutting owners of real property, such as defendants, are responsible for maintaining the sidewalk in a reasonably safe condition and may be liable for their failure to do so, the condition cited by plaintiff as the cause of his accident was on the curb, not the sidewalk, as defined byAdministrative Code § 19-101(d) (see Fernandez v Highbridge Realty Assoc., 49 AD3d 318, 319 [1st Dept 2008]), and abutting owners are not obligated to maintain the curb (see Ascencio v New York City Hous. Auth., 77 AD3d 592, 593 [1st Dept 2010]; Garris v City of New York, 65 AD3d 953 [1st Dept 2009]). Furthermore, plaintiff failed to present evidence sufficient to raise a triable issue of fact as to whether defendants caused or created the condition or made special use of the curb cut (see Trent-Clark v City of New York, 114 AD3d 558 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 17, 2020