New York Supreme and/or Appellate Courts Appellate Division, First Department
June 12, 2012
ELIZABETH COMBIER, PLAINTIFF-APPELLANT, THE
CITY OF NEW YORK, ET AL., DEFENDANTS, EL-KAM REALTY CO., DEFENDANT-RESPONDENT. [AND A THIRD-PARTY ACTION]
Combier v City of New York
Decided on June 12, 2012
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.
Saxe, J.P., Catterson, Acosta, DeGrasse, Richter, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered April 28, 2011, which, in an action for personal injuries sustained when plaintiff tripped and fell over fencing surrounding a tree well on the sidewalk abutting a building owned by defendant/third-party plaintiff El Kam Realty Co. (El Kam), granted El Kam's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
El Kam established its entitlement to judgment as a matter of law. El Kam submitted evidence showing that it did not install, maintain, control or repair the fencing around the tree well which allegedly caused plaintiff's fall (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521 ). In opposition, plaintiff failed to raise a triable issue of fact. Although plaintiff argued that El-Kam contracted to have third-party defendant perform work to improve the subject tree well, plaintiff made no showing that El-Kam assumed any control over that work (see Fernandez v 707, Inc., 85 AD3d 539 ).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 12, 2012
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