Opinion
No. 2020-08362 Index No. 708627/18
03-06-2024
Gangabasi Moonilal, appellant, v. Roman Catholic Church of St. Mary Gate of Heaven, respondent.
The Barnes Firm, P.C., Garden City, NY (Robert Seigal and Martha M. Pigott of counsel), for appellant. Landman Corsi Ballaine & Ford P.C., New York, NY (William G. Ballaine, Patricia U. Hines, and Ronald E. Joseph of counsel), for respondent.
The Barnes Firm, P.C., Garden City, NY (Robert Seigal and Martha M. Pigott of counsel), for appellant.
Landman Corsi Ballaine & Ford P.C., New York, NY (William G. Ballaine, Patricia U. Hines, and Ronald E. Joseph of counsel), for respondent.
JOSEPH J. MALTESE, J.P., LARA J. GENOVESI, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered October 15, 2020. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
In 2017, the plaintiff allegedly was injured when she tripped and fell on a sidewalk adjacent to property owned by the defendant. The plaintiff commenced this action to recover damages for personal injuries, alleging that the defendant was liable pursuant to Administrative Code of the City of New York § 7-210, which imposes tort liability on certain adjacent property owners who fail to maintain city-owned sidewalks in a reasonably safe condition (see id. § 7-210[a]). The defendant moved for summary judgment dismissing the complaint. In support of the motion, the defendant asserted that the plaintiff's own deposition testimony established that the area where the plaintiff tripped and fell was a bus stop and, therefore, the City of New York was responsible for maintaining the sidewalk in that location. The plaintiff opposed the motion. The Supreme Court granted the motion, and the plaintiff appeals.
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 demonstrate the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853). In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party (see Morejon v New York City Tr. Auth., 216 A.D.3d 134, 136). Moreover, the court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist (see Stukas v Streiter, 83 A.D.3d 18, 23).
Under Administrative Code § 7-210, an abutting property owner has a duty to maintain the public sidewalk, but the City continues to be responsible for maintaining any part of the sidewalk that is within a designated bus stop location (see id. § 7-210[a]; McCormick v City of New York, 165 A.D.3d 565, 565; Shaller v City of New York, 41 A.D.3d 697).
Here, the defendant failed to demonstrate, prima facie, that the area of the sidewalk where the accident occurred was within a designated bus stop location maintained by the City (see Administrative Code § 7-210; Earle v City of New York, 223 A.D.3d 880; Smoot v Rite Aid, 185 A.D.3d 411; McCormick v City of New York, 165 A.D.3d at 565; Bednark v City of New York, 127 A.D.3d 403; Munasca v Morrison Mgt. LLC, 111 A.D.3d 564; Crandell v New York City Tr. Auth., 81 A.D.3d 407). Moreover, the Supreme Court's reliance on Administrative Code § 16-124.1 was misplaced (see Smoot v Rite Aid, 185 A.D.3d at 412; Bednark v City of New York, 127 A.D.3d at 404). Since the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853). Accordingly, the court should have denied the defendant's motion for summary judgment dismissing the complaint.
MALTESE, J.P., GENOVESI, FORD and VENTURA, JJ., concur.