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Lorenzo v. Ortiz Funeral Home Corp.

Supreme Court of New York, First Department

January 23, 2014

Pilar Rivera Lorenzo, Plaintiff,
v.
Ortiz Funeral Home Corporation, et al., Defendants-Respondents, E.S.D. Corp., et al., Defendants, Electro Concourse Associates, et al., Defendants-Appellants.

Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellants.

Safranek, Cohen & Krolian, White Plains (James G. Kelly of counsel), for respondents.

Tom, J.P., Acosta, Andrias, Freedman, Feinman, JJ.

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered June 27, 2013, which denied the motion of defendants-appellants Electro Concourse Associates and Stellar Management, LLC for summary judgment dismissing the complaint and cross claims as against them, unanimously reversed, on the law, without costs, the motion granted and, upon a search of the record, the cross motion of defendants-appellants E.S.D. Corp. and Corky's Restaurant for summary judgment dismissing the complaint and cross claims as against them granted as well. The Clerk is directed to enter judgment in favor of said defendants accordingly. Appeal from so much of the same order as denied the cross motion, unanimously dismissed, without costs, as abandoned.

Plaintiff and her daughter testified at their depositions that plaintiff was injured when she tripped and fell over the raised or elevated portion of a public sidewalk located near a diner and a funeral home. Defendants Electro Concourse Associates and Stellar Management (Electro/Stellar) own and manage, respectively, a mixed use building next door to a building owned by defendants-respondents, who run a funeral home there. Defendants E.S.D. Corp. and Corky's Restaurant operate a small diner in a storefront they rent from Electro/Stellar.

In support of their motion for summary judgment, Electro/Stellar met their prima facie burden by submitting the affidavit of an engineer who opined that the concrete slab in front of the funeral home had become raised as a result of tree roots pushing up, and that Electro/Stellar had not contributed to the defect, and the affidavit of a land surveyor who opined that the raised slab was located entirely in front of the property owned by the funeral home, and not in front of the property owned by Electro/Stellar. Since the sidewalk defect that caused the accident was located in front of the neighboring property and was not caused or created by Electro/Stellar, they did not have any

obligation to repair the defect (see Mitchell v Icolari, 108 A.D.3d 600, 601-602 [2d Dept 2013]; Administrative Code of the City of New York § 7-210; see also Galindo v Town of Clarkstown, 2 N.Y.3d 633, 636 [2004]). Defendants E.S.D. Corp. and Corky's Restaurant cross-moved for summary judgment relying on the same arguments and evidence.

Plaintiff did not oppose the motion or cross motion. The funeral home defendants opposed, submitting only photographs taken by Electro/Stellar's engineering expert, which were insufficient to raise an issue of fact as to the location of the raised sidewalk that plaintiff testified caused her accident. Since the funeral home defendants failed to raise an issue of fact, the motion for summary judgment dismissing all claims and cross claims against Electro-Stellar was warranted. Upon a search of the record, summary judgment is also granted to defendants E.S.D. Corp. and Corky's Restaurant since the issue of duty to repair the defect is identical as it relates to them, notwithstanding their failure to pursue their appeal (see Brewster v FTM Servo, Corp., 44 A.D.3d 351 [1st Dept 2007]; CPLR 3212[b]).


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