Opinion
16504 Index No. 158961/19 Case No. 2022–00767
10-20-2022
Ravi MANGLANI etc., Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Respondent, El-Kam Realty Co., Defendant–Appellant, El-Kam 1501–1509 LLC, Defendant.
Hickey Smith Dodd LLP, New York (Jody C. Benard of counsel), for appellant. Dansker & Aspromonte Associates, New York (Raymond Maceira of counsel), for Ravi Manglani, respondent. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for The City of New York, respondent.
Hickey Smith Dodd LLP, New York (Jody C. Benard of counsel), for appellant.
Dansker & Aspromonte Associates, New York (Raymond Maceira of counsel), for Ravi Manglani, respondent.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for The City of New York, respondent.
Gische, J.P., Kern, Gesmer, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about January 5, 2022, which denied defendant El–Kam Realty Co.’s motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint as against it, unanimously affirmed, without costs.
Plaintiff stated cognizable causes of action sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7). Although an abutting property owner is not responsible for a defective tree well in the sidewalk (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 518–519, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008] ), it may still be liable if it caused or created a hazardous condition (see Fernandez v. 707, Inc., 85 A.D.3d 539, 540, 926 N.Y.S.2d 408 [1st Dept. 2011] ). Here, plaintiff alleged that defendant created the tripping hazard in the tree bed adjacent to its property. The affidavit of defendant's managing agent did not establish a defense as a matter of law because it was not conclusive "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Disbrow v. Normandie Condominium, 201 A.D.3d 462, 156 N.Y.S.3d 839 [1st Dept. 2022] ; Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431, 431, 951 N.Y.S.2d 393 [1st Dept. 2012] ). We note that defendant failed to annex most of the documents referred to in the managing agent's affidavit.