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Bednark v. City of New York

Supreme Court of New York, New York County

October 8, 2013

Kathleen BEDNARK, Plaintiff,
v.
The CITY OF NEW YORK, New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, Heron Real Estate Corp., BP America, Inc. and Accede, Inc., Defendants.

[972 N.Y.S.2d 865] Rheingold, Valet, Rheingold, McCartney & Giuffra, LLP, by Jeremy A. Hellman, Esq., New York City, for plaintiff.

Michael A. Cardozo, Corporation Counsel of the City of New York, by Julien Baumrin, Esq., Assistant Corporation Counsel, New York City, for defendant City of New York.

Carman, Callahan & Ingham, LLP, by Peter F. Breheny, Esq., Farmingdale, for defendants Heron Real Estate Corp., BP America, Inc., and Accede, Inc.

[972 N.Y.S.2d 866] MICHAEL D. STALLMAN, J.

In this personal injury action, defendant The City of New York (City) moves for summary judgment dismissing the plaintiff's complaint as against it (Motion Seq. No. 003). Defendants Heron Real Estate Corp. (Heron), BP America Inc. (BP), and Accede, Inc. (collectively, the Property Owners) separately move for summary judgment dismissing the action as against them (Motion Seq. No. 002).

BACKGROUND

Plaintiff alleges that, on June 10, 2008, upon alighting from a bus through the rear doors, she stepped onto a cracked area of sidewalk and fell, abutting a gas station owned by defendants Heron and BP and operated by defendant Accede, on the north side of East 125th Street between Second and Third Avenues, in Manhattan.

Plaintiff testified,

" There was a flow of passengers getting off in front of me and behind me. I grabbed onto the right handrail and dropped my bag with my left hand, and then very shortly thereafter stepped on the left foot— stepped down onto the cracked cement with my left foot. Continue?
Q. Yes, please.
[Colloquy omitted] * * *
Q. [W]hat happened next?
A. My foot twisted out, and I collapsed onto the pavement."

(Breheny Affirm., Ex. G [Bednark EBT], at 28-29.)

Plaintiff, in her affidavit, provided photographs taken by her on June 15, 2008, five days after the accident, showing the appearance of the sidewalk where she allegedly fell. (Hellman Affirm., Ex A [Bednark Aff.], ¶¶ 3-6.) Plaintiff also measured the distance from where she allegedly fell to the nearest bus stop pole. (Id. ¶¶ 7-8.) According to plaintiff, the accident site was approximately 55 feet away from a bus stop pole indicating where buses should pull up to that stop, and indicating a no stopping zone for vehicles (Id. ¶ 8.) Plaintiff also reviewed a 2003 Big Apple Map showing East 125th Street between Second and Third Avenues which had notations indicating an obstruction protruding from the sidewalk; she noted the place of her alleged fall on the map. (Id. ¶ 13; see also Hellman Affirm., Ex. H [Big Apple Map].)

DISCUSSION

The standards for summary judgment are ...


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