Avezbakiyev v Champion Commons LLC

[*1] Avezbakiyev v Champion Commons LLC 2012 NY Slip Op 52331(U) Decided on November 26, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 26, 2012
Supreme Court, Queens County

David Avezbakiyev, Plaintiff,

against

Champion Commons LLC, et al., Defendants.



29284 2010

Charles J. Markey, J.

The following papers numbered 1 to 10 read on this motion by the defendants for an award of summary judgment dismissing the plaintiff's complaint.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits.........1-5

Answering Affidavits - Exhibits..................6-7

Reply Affidavits.................................9-10

Upon the foregoing papers it is ordered that the motion is determined as follows:

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff which occurred, on February 6, 2008, when he tripped and fell over a tree stump located in a tree well on the public sidewalk adjacent to the premises located at 64-05 Yellowstone Boulevard in Forest Hills, Queens, New York. In his bill of particulars, the plaintiff alleges that defendants were negligent in creating a narrow passageway on the sidewalk by constructing a sidewalk construction fence on the sidewalk that did not encase or close off the entire sidewalk; permitting a tree stump to remain on the public sidewalk and/or curb, thereby creating dangerous and hazardous condition; failing to warn the plaintiff and others of the subject dangerous condition; and failing to install a lamp on a nearby light pole, failing to provide an operational light pole and allowing said location to be improperly illuminated. [*2]

The defendants move for summary judgment dismissing the complaint against them on the grounds that they did not create the condition complained of, have a special use of or duty to maintain the location where the accident occurred or own the property adjacent to the public sidewalk where the accident occurred. The defendants further assert that the subject tree well is owned and maintained by the City of New York. They further assert that they formerly owned the premises adjacent to the sidewalk tree well but sold it on April 10, 2006, almost two years before the subject incident.

In support of summary judgment the defendants submit, inter alia, the affidavit of Mr. Manouchehr Malekan, who stated that he is a member of the defendant corporations. Mr. Malekan, avers that the defendants did not own the subject tree or tree well, did not cut down the tree or perform any construction in the area in question. Mr. Malekan also submits proof of the defendants' conveyance of the adjacent premises on April 10, 2006, to Horizon at Forest Hills, Inc. who, along with the City of New York, is named as a defendant in a related action commenced by the plaintiff, entitled Avezbakiyev v City of New York, et. al, and bearing Queens County index number 10801/09 . This evidence is sufficient to establish the defendants' prima face entitlement to summary judgment dismissing the complaint against them because they cannot be held liable for the alleged dangerous condition since they did not cause or create the alleged condition on the public sidewalk or maintain a special use of the subject area (Hausser v Giunta, 88 NY2d 449 [1996]) and the duty to maintain the tree well is the responsibility of the City of New York(Vucetovic v Epsom Downs, Inc., 10 NY3d 517 [2008]; Fusco v City of New York, 71 AD3d 1083 [2010]). In opposition, the plaintiff has failed to raise a triable issue of fact ( see generally, Alvarez v Prospect Hospital, 68 NY2d 230 [1980]; Zuckerman v City of New York, 49 NY2d 557 [1986]).

Accordingly, the defendants' motion for summary judgment is granted and the complaint is hereby dismissed.

Dated: November 26, 2012

J.S.C.