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Rivera v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 11, 2008

EMILY RIVERA, PLAINTIFF-RESPONDENT,
v.
CITY OF NEW YORK, DEFENDANT,
NEW YORK CITY HOUSING AUTHORITY, DEFENDANT-APPELLANT.
NEW YORK CITY HOUSING AUTHORITY, THIRD-PARTY PLAINTIFF-APPELLANT,
GAZEBO CONTRACTING, INC., THIRD-PARTY DEFENDANT-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.

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.

Andrias, J.P., Saxe, Sweeny, Catterson, Moskowitz, JJ.

26549/00 42022/03

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 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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081211

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