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Rodriguez v. E & P Associates

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 2, 2010

IVAN RODRIGUEZ, PLAINTIFF-APPELLANT,
v.
E & P ASSOCIATES, ET AL., DEFENDANTS-RESPONDENTS. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, Bronx County (Nelson S. RomÁn, J.), entered August 14, 2008, which granted the summary judgment motions of all but the Modell's defendants to dismiss the complaint, and denied plaintiff's cross motion for summary judgment against all defendants, unanimously affirmed, without costs.

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.

Gonzalez, P.J., Saxe, McGuire, Acosta, Abdus-Salaam, JJ.

7985/02

The evidence established that defendants did not create a dangerous or blatantly defective condition in constructing a non-weight-bearing window ledge, which collapsed and through which plaintiff fell. The renovation plans, which incorporated plans for the interior build-out by lessee Modell's, did not specify that the area abutting the window was to be weight-bearing, and absent any such instruction from Modell's, there was no basis for designing or building the window ledge to be weight-bearing. The evidence suggesting that the window might be used to display signs, or that the ledge might be used as a display, was not sufficient to put any defendant on notice that the ledge would be used to stand or walk on, and that they were creating a dangerous condition in constructing a non-weight-bearing ledge (see Diaz v Vasques, 17 AD3d 134, 135 [2005], lv denied sub nom. Boggio v Yonkers Contr. Co., 5 NY3d 706 [2005]).

Nor did plaintiff submit evidence sufficient to raise an issue of fact as to whether the allegedly dangerous condition was a structural defect in violation of the New York City Building Code. Absent a showing of a dangerous condition or Code violation that might have supported a finding of negligence per se, plaintiff's cross motion for partial summary judgment, which was untimely filed, was properly denied.

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

20100302

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