Opinion
5467 Index 154798/12
01-16-2018
Loretta SCHULMAN, et al., Plaintiffs–Respondents, v. The CITY OF NEW YORK, et al., Defendants–Respondents, New York City Department of Transportation, et al., Defendants, Fra–Ming Realty Corp., Defendant–Appellant.
Mauro Lilling Naparty, LLP, Woodbury (Anthony F. Destefano of counsel), for appellant. William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for Loretta Schulman and Leonard Schulman, respondents. Zachary W. Carter, Corporation Counsel, New York (John Moore of counsel), for City of New York, respondent.
Mauro Lilling Naparty, LLP, Woodbury (Anthony F. Destefano of counsel), for appellant.
William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for Loretta Schulman and Leonard Schulman, respondents.
Zachary W. Carter, Corporation Counsel, New York (John Moore of counsel), for City of New York, respondent.
Friedman, J.P., Mazzarelli, Kapnick, Webber, Moulton, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered December 30, 2016, which denied defendant Fra–Ming Realty Corp.'s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff Loretta Schulman alleges that she tripped and fell on a metal protrusion and/or sign post "stump" on a public sidewalk located in front of 123–125 East 90th Street, which is owned by defendant Fra–Ming Realty Corp. and maintained by its managing agent, nonparty Wallack Management Co., Inc.After reviewing the record, we find that defendant established that its employees did not create the alleged defect by submitting the deposition testimony of its part-owner that defendant performed no work to the subject section of the sidewalk before the accident (see Nepomuceno v. City of New York , 137 A.D.3d 646, 646–647, 28 N.Y.S.3d 51 [1st Dept. 2016] ). The part-owner's testimony also established that defendant lacked actual or constructive notice of the alleged condition, because he testified that prior to plaintiff's accident, he was unaware of any complaints or accidents on the sidewalk, and had received no violations concerning the sidewalk (see Parra v. City of New York , 137 A.D.3d 532, 533, 27 N.Y.S.3d 36 [1st Dept. 2016], citing Gomez v. Congregation K'Hal Adath Jeshurun, Inc. , 104 A.D.3d 456, 456, 961 N.Y.S.2d 100 [1st Dept. 2013] ). In opposition, plaintiff and codefendant City of New York failed to raise a triable issue of fact.