Opinion
01-03-2017
Ian M. WASHAM, et al., Plaintiffs–Appellants, v. O'HATHAIRNE BROTHERS, INC., et al., Defendants, Michael F. Harney, et al., Defendants–Respondents.
O'Hare Parnagian LLP, New York (Andrew C. Levitt of counsel), for appellants. McMahon & McCarthy, Bronx (John E. Boneta of counsel), for respondents.
O'Hare Parnagian LLP, New York (Andrew C. Levitt of counsel), for appellants.
McMahon & McCarthy, Bronx (John E. Boneta of counsel), for respondents.
FRIEDMAN, J.P., SWEENY, RICHTER, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered April 14, 2016, which, to the extent appealed from as limited by the briefs, granted the Harney defendants' motion to dismiss the amended complaint, unanimously affirmed, without costs.
In this action for personal injuries allegedly sustained by plaintiff Ian Washam when he slipped and fell on a sidewalk abutting property purportedly owned, operated and controlled by defendants, the Harney defendants submitted a deed demonstrating that they had conveyed the property to defendant O'Hathairne Brothers, Inc. almost 10 years before plaintiff's accident, and therefore were not responsible for maintaining the abutting sidewalk (see Administrative Code of City of N.Y. § 7–210 ). The documents submitted by plaintiffs failed to rebut the presumption that the deed was delivered and accepted (see M & T Real Estate Trust v. Doyle, 20 N.Y.3d 563, 568, 964 N.Y.S.2d 480, 987 N.E.2d 257 [2013] ). Further, although plaintiffs alleged that the Harney defendants operated and controlled the premises, plaintiffs did not allege that the Harney defendants did so to the exclusion of O'Hathairne Brothers (see Worthy v. New York City Hous. Auth., 21 A.D.3d 284, 288, 799 N.Y.S.2d 518 [1st Dept.2005] ).