DORIS LING -COHAN, J.S.C
The following papers, numbered 19 were considered on this motion for summary Judgment:
Upon the foregoing papers, it is ordered that this motion for summary judgment is granted for the reasons set forth below.
Plaintiff Yousufu Sangaray (Sangaray) brings this action to recover damages for personal injuries allegedly sustained as a result of a trip and fall on a sidewalk between two buildings, 1787 Amsterdam Avenue, New York, New York, owned by defendant West River Associates, LLC (West River), and 1785 Amsterdam Avenue, New York, New York, owned by defendants Sandy Mercado and Rhina Mercado (jointly defendants Mercado).
On August 23, 2009, plaintiff Sangaray tripped on a sidewalk joint and sustained personal injuries when he fell. Thereafter, plaintiff Sangaray commenced this action against defendants alleging that defendants are in violation of New York City Administrative Codes (NYC Admin. Code) §§7-210 and 19-152. Plaintiff Sangaray alleges that defendants were negligent in properly maintaining the public sidewalk in front of their respective buildings, in that the sidewalk was defective due to a sloping sidewalk flag which caused a height differential between the two flags of the sidewalk joint. Specifically, plaintiff Sangaray states that he was in the process of stepping from defendant West River's sunken sidewalk onto defendants Mercado's sidewalk, which was ground level, when he struck his toe and fell.
Defendant and third-party plaintiff West River commenced a third-party action against third-party defendants Premium Radio Dispatch and Multi-Service Corporation. Neither third-party defendants have appeared in this action. Defendant West River now moves for summary judgment.
In order to establish negligence, a "plaintiff is required to prove the existence of a duty, that is, a standard of reasonable conduct in relation to the risk of reasonably foreseeable harm; a breach of that duty and that such breach was a substantial cause of the resulting injury". Baptiste v New York City Tr. Auth., 28 A.D.3d 385, 386 (1st Dep't 2006), citing Palsgraf v Long Is. R.R. Co., 248 NY 339 (1928). The standards of summary judgment are well settled. Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure., .to do [so]", Zuckerman v City of New York, 49 N.Y.2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. See Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 231 (1978).
Defendant West River argues that it is entitled to summary judgment, as it is not the owner of the allegedly defective area of the sidewalk, which was the alleged cause of plaintiff Sangaray's accident and resultant injuries, as plaintiff Sangaray did not fall on the sidewalk in front of defendant West River's premises. Defendant West River further argues that NYC Admin. Codes §§7-210 and 19-152 only impose a duty to maintain the sidewalk abutting real property to the owner of such real property. According to defendant West River, as it is not the owner of the portion of the sidewalk flag where plaintiff Sangaray tripped, it is not in violation of the NYC Admin. Code, and it breached no duty owed to plaintiff Sangaray.
In support of its motion, defendant West River proffers, inter alia, the deposition transcript of plaintiff Sangaray, the deposition transcript of Allan Heussinger, a managing member of defendant West River, pictures of the defective sidewalk in which plaintiff Sangaray circled where he tripped, the affidavit of Angelo J. Fiorenza (Fiorenza), a professional land surveyor, and a survey of defendant West River's property. Defendant West River contends that, although the vast majority of the defective sloping sidewalk flag abuts its property, the area where plaintiff Sangaray alleges he fell indisputably abuts defendants Mereado's property.
In opposition, plaintiff Sangaray argues that defendant West River failed to make a. prima facie showing of entitlement to summary judgment. Plaintiff Sangaray contends that defendant West River allowed its sidewalk flagstones to cave in and sink several inches below ground level, and thus, a jury could find that defendant West River contributed to the creation of the defect on defendant Mereado's property. Plaintiff Sangaray argues that, pursuant to NYC Admin. Code §7-210, if a landowner's failure to maintain its sidewalk in a reasonably safe condition proximately causes an accident, such landowner may be held liable, even if the accident takes place in front of another person's property. In making mis argument, plaintiff Sangaray relies on the plain language of NYC Admin. Code §7-210, which states, in pertinent part, that "[i]t shall be the duty of the owner of real property abutting any side walk...to maintain such sidewalk in a reasonably safe condition." Further, plaintiff Sangaray asserts that defendant West River's motion for summary judgment must be denied, as defendant West River failed to establish that its negligent maintenance of its own sidewalk was not a proximate cause of plaintiff Sangaray's accident.
Defendants Mercado also oppose defendant West River's motion for summary judgment, arguing that questions of fact exist. In opposition, defendants Mercado proffer, inter alia, the affidavit of Paul Angelides (Andelides), a licensed New York State Professional Engineer, and a survey of portion of the sidewalk abutting both 1787 and 1785 Amsterdam Avenue. Defendants Mercado argue that NYC Admin. Code §7-210 does not limit which defects owners can be held responsible for. Relying on the language of NYC Admin. Code §7-210 quoted above, defendants Mercado argue that any owner of real property can be held responsible for ...