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Michael Thompson v. 793-97 Garden Street Housing Development Fund Corporation

New York Supreme and/or Appellate Courts Appellate Division, First Department


December 27, 2012

MICHAEL THOMPSON,
PLAINTIFF-APPELLANT, --
v.
793-97 GARDEN STREET HOUSING DEVELOPMENT FUND CORPORATION,
DEFENDANT-RESPONDENT.

Thompson v 793-97 Garden St. Hous. Dev. Fund Corp.

Decided on December 27, 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.

Friedman, J.P., Acosta, Renwick, Richter, Roman, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered October 11, 2011, which granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for leave to amend his bill of particulars, unanimously affirmed, without costs.

The record demonstrates conclusively that defendant did not own the property that abutted the sidewalk on which plaintiff tripped and fell, and was therefore not responsible for maintaining it in a reasonably safe condition (see Administrative Code of City of NY § 7-210; Montalbano v 136 W. 80 St. CP, 84 AD3d 600, 602-603 [1st Dept 2011]).

Plaintiff's proposed amendment of his bill of particulars to allege that defendant made special use of the sidewalk is unsupported by evidence that the sidewalk was subject to defendant's control (see Balsam v Delma Eng'g Corp., 139 AD2d 292, 298 [1st Dept 1988], lv dismissed in part, denied in part 73 NY2d 783 [1988]). Plaintiff's evidence shows merely that many people, including some of defendant's tenants, use the sidewalk to exit a de facto parking lot on a nearby abandoned dirt road.

We have considered plaintiff's remaining contentions and find them unavailing.

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

ENTERED: DECEMBER 27, 2012

CLERK

20121227

© 1992-2012 VersusLaw Inc.



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