Diaz v 540 W. 145 LLC

Annotate this Case

Download PDF

Diaz v 540 W. 145 LLC 2019 NY Slip Op 33212(U) October 24, 2019 Supreme Court, New York County Docket Number: 154064/2016 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/29/2019 09:33 AM NYSCEF DOC. NO. 100 INDEX NO. 154064/2016 RECEIVED NYSCEF: 10/29/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART IAS MOTION 52EFM Justice --------------------------------------------------------------------------------X MILAGROS MEDINA DIAZ, INDEX NO. MOTION DATE Plaintiff, 154064/2016 10/23/2019 MOTION SEQ. NO. 003 -vDECISION + ORDER ON MOTION 540 WEST 145 LLC,AXION MANAGEMENT LLC,SOLE, Defendant. ---------------------------------------------------------------------------------X SOLE Third-Party Index No. 595385/2017 Plaintiff, -against- CITY OF NEW YORK Defendant. -----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,80,82, 84,85, 86,87, 88, 89, 90, 91, 92, 93, 94,95, 96,97, 98 were read on this motion to/for JUDGMENT - SUMMARY Upon the foregoing documents, the Decision/Order of the Court is as follows: Defendant, The City of New York, (the "City") pursuant to CPLR 3212, moves this Court for an order granting summary judgment, dismissing the third-party complaint and all cross-claims. The City states that under 7-210 of the Administrative Code of the City of New York ("7-210"), the City is not liable for plaintiffs injuries. For the reasons set forth below, this Court grants the City's motion for summary judgment in its entirety and dismisses the third-party action. Plaintiff alleged that on April 12, 2016, she tripped and fell on the sidewalk in front of a property addressed as 540 West 145h Street, New York, New York. 154064/2016 Motion No. 003 Page 1 of4 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 10/29/2019 09:33 AM NYSCEF DOC. NO. 100 INDEX NO. 154064/2016 RECEIVED NYSCEF: 10/29/2019 Photographs of the sidewalk abutting 540 West 145h Street, were marked at the deposition and none of the photos depict a tree well. Further, plaintiff testifies that she did not see a tree in the area, nor did she fall on the curb, rather plaintiff fell on the sidewalk flag. Summary Judgment Standard Summary Judgment should not be granted where there is any doubt as to the existence of a material issue of fact. Zuckerman v City ofNew York, 49 NY2d 557, 562, 427 [1980]. The function of the court when presented with a motion for Summary Judgment is one of issue finding, not issue determination. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Weiner v. Ga-Ro Die Cutting, Inc., 104 AD2d 331 [I5t Dept 1984] aff'd 65 NY2d 732 [1985]. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Winegradv New York University Medical Center, 64 NY2d 851 [1985]. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party. Assafv Ropog Cab Corp., i53 AD2d 520 [1st Dept 1989]. Summary judgment will only be granted ifthere are no material, triable issues of fact Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]. 154064/2016 Motion No. 003 Page 2 of 4 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 10/29/2019 09:33 AM NYSCEF DOC. NO. 100 INDEX NO. 154064/2016 RECEIVED NYSCEF: 10/29/2019 Administrative Code§ 7-210 Section 7-210 provides in pertinent part that "the owner ofreal property abutting any sidewalk, including, but not limited to; the intersection quadrant for comer property shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." NY Admin Code §7-210. Also, "[n]otwithstanding any other provision oflaw, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two-or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition. This subdivision shall not be construed to apply to the liability of the city as a property owner pursuant to subdivision b of this section." Id. To determine ifthe City is liable under 7-210, the court will look at: (1) the location of the sidewalk where the alleged accident transpired; (2) the non-City ownership of the real property that abuts the location where the alleged accident occurred; and (3) the non-exempt building classification of the abutting property. Id. Therefore, the City makes out prima facie entitlement to summary judgment by establishing that the location of an occurrence meets the definition of section 7-210, which the City has established. In opposition to the City's motion, S.ole attempts to label the location of the accident a tree well which would render §7-210 inapplicable. However, third-party plaintiff has provided no admissible evidence to support this contention. It is well established that a motion for summary 154064/2016 Motion No. 003 Page 3 of 4 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 10/29/2019 09:33 AM NYSCEF DOC. NO. 100 INDEX NO. 154064/2016 RECEIVED NYSCEF: 10/29/2019 judgment may not be defeated by mere speculation. Consequently, third-party plaintiff has failed to raise a triable issue of fact. Notably, plaintiff had no position on the City's motion. Accordingly, it is hereby ORDERED that the City's motion is granted in its entirety and the third-party complaint and all cross-claims are dismissed as against the City of New York; and it is further ORDERED that the third-party action is severed, and the action shall continue under the original index number; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. LYL~. FRANl.Yt.i E. f AANK DlsPHQ~· J.s.c. 10/24/2019 DATE CHECK ONE: CASE DISPOSED GRANTED NON-FINAL D DENIED GRANTED IN PART APPLICATION: SETILEORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TR~NSFER/REASSIGN FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page4 of 4 154064/2016 Motion No. 003 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.