Opinion
06-23-2016
Hafiz BAGHBAN, et al., Plaintiffs–Respondents, v. CITY OF NEW YORK, et al., Defendants–Respondents, Judlau Contracting, Inc., Defendant, The 153 Chambers Condominium, Defendant–Appellant. [And a Third–Party Action].
McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz of counsel), for appellant. Cellino & Barnes, P.C., New York (John H. Shields of counsel), for Hafiz Baghban and Marcia Baghban, respondents. Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for City of New York, respondent. Wilson Elser Moskowwitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Coastal Communications Services, Inc., respondent.
McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz of counsel), for appellant. Cellino & Barnes, P.C., New York (John H. Shields of counsel), for Hafiz Baghban and Marcia Baghban, respondents.
Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for City of New York, respondent.
Wilson Elser Moskowwitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Coastal Communications Services, Inc., respondent.
Opinion
Order, Supreme Court, New York County (Frank P. Nervo, J.), entered May 12, 2015, which, insofar as appealed from as limited by the briefs, denied as premature the motion of defendant 153 Chambers Condominium (153 Chambers) for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Plaintiff Hafiz Baghban was injured when he tripped and fell on a raised piece of concrete, namely, the remnants of a phone booth that had been removed a year earlier, located on the sidewalk in front of 153 Chambers's premises. “Administrative Code of the City of New York § 7–210 imposes a nondelagable duty on the owner of the abutting premises to maintain and repair the sidewalk” in a reasonably safe condition (Collado v. Cruz, 81 A.D.3d 542, 542, 917 N.Y.S.2d 178 [1st Dept.2011] ; see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008] ). Rules of the City of New York Department of Transportation (34 RCNY) § 2–07(b)(1) is inapplicable because it applies only to “owners of covers or gratings” on the sidewalk. Here, the condition that caused Baghban's injury did not involve either a defective cover or grating, but rather a raised piece of the sidewalk itself (cf. Lewis v. City of New York, 89 A.D.3d 410, 931 N.Y.S.2d 855 [1st Dept.2011] ; Storper v. Kobe Club, 76 A.D.3d 426, 906 N.Y.S.2d 543 [1st Dept.2010] ).
The court also properly held that 153 Chambers's motion was premature (CPLR 3212[f] ). Plaintiff and codefendants demonstrated that additional discovery was necessary because 153 Chambers's president had yet to be deposed, and the record suggested that there were issues of fact as to whether 153 Chambers had constructive notice of the sidewalk condition before the accident (see Figueroa v. City of New York, 126 A.D.3d 438, 439, 5 N.Y.S.3d 62 [1st Dept.2015] ).
TOM, J.P., FRIEDMAN, RICHTER, KAPNICK, GESMER, JJ., concur.