NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 24, 2009
EVELYN NIEVES, PLAINTIFF-RESPONDENT,
BURNSIDE ASSOCIATES, LLC, DEFENDANT-APPELLANT, THE CITY OF NEW YORK, DEFENDANT.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered June 26, 2008, which denied defendant Burnside's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Burnside Associates, LLC dismissing the complaint as against it.
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., Sweeny, McGuire, DeGrasse, JJ.
Out-of-possession owner Burnside, which had no contractual obligation to repair, cannot be liable for plaintiff's alleged injury absent an allegation that the defective condition resulting in the accident constituted a specific statutory safety violation (see Vasquez v The Rector, 40 AD3d 265, 266 ); plaintiff failed to establish any such violation. Moreover, Burnside's managing agent averred, without contradiction, that Burnside had never been given actual notice of the defect. With respect to constructive notice, plaintiff testified that despite numerous visits to the workplace parking lot where she fell, she had never before seen the defect in the pavement. There was no evidence that Burnside had created the defect when it constructed the parking lot several years earlier.
In view of the foregoing, it is unnecessary to address plaintiff's remaining contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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