Filed: Oct. 09, 2012
Latest Update: Oct. 09, 2012
Summary: DECISION AND ORDER BARBARA JAFFE, Judge. It is ordered that this motion is Decided in accordance with accompanying decision/order. By notice of motion dated January 31, 2012, defendant City moves pursuant to CPLR 3211(a)(7) and/or 3212 for an order summarily dismissing the complaint and any cross claims against it. Plaintiff and defendants Steven Croman, Harriet Croman, Edward Croman, and Croman Real Estate, Inc. oppose. In her notice of claim served on City on May 13, 2009, plaintiff allege
Summary: DECISION AND ORDER BARBARA JAFFE, Judge. It is ordered that this motion is Decided in accordance with accompanying decision/order. By notice of motion dated January 31, 2012, defendant City moves pursuant to CPLR 3211(a)(7) and/or 3212 for an order summarily dismissing the complaint and any cross claims against it. Plaintiff and defendants Steven Croman, Harriet Croman, Edward Croman, and Croman Real Estate, Inc. oppose. In her notice of claim served on City on May 13, 2009, plaintiff alleges..
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DECISION AND ORDER
BARBARA JAFFE, Judge.
It is ordered that this motion is Decided in accordance with accompanying decision/order.
By notice of motion dated January 31, 2012, defendant City moves pursuant to CPLR 3211(a)(7) and/or 3212 for an order summarily dismissing the complaint and any cross claims against it. Plaintiff and defendants Steven Croman, Harriet Croman, Edward Croman, and Croman Real Estate, Inc. oppose.
In her notice of claim served on City on May 13, 2009, plaintiff alleges that on April 10, 2009, she tripped and fell on the sidewalk in front of 12A E. 72nd Street in Manhattan (the premises), and that:
the incident occurred at an area of sidewalk directly adjacent to the curb, approximately 3 feet east of the northeast comer of a rectangle formed by a tree planter cutout in the sidewalk directly in front of said premises, when the claimant was precipitated violently to the ground when her foot became wedged in a dangerous crack in the sidewalk at the location described. The crack was between 1 and 2 inches wide and approximately 30 inches long running along the length of the curb/sidewalk transition.
(Affirmation of Michael Nacchio, ACC, dated Jan. 31, 2012 [Nacchio Aff.], Exh. A).
In plaintiff's complaint dated March 18, 2010, plaintiff again alleges that she fell on the sidewalk and curb in front of the premises. A Big Apple Map (Map) annexed to the complaint reflects an "extended section of broken, misaligned, or uneven curb" in front of the premises. (Id. Exh. B).
At a 50-h hearing held on October 29, 2009, plaintiff testified, as pertinent here, that the defect which caused her fall was located in an area between the curbstone and a space between two sidewalk flags. Pictures taken of the location reflect a large crack or area of eroded concrete located at the intersection of the curbstone and two sidewalk flags, with the crack/erosion extending into both the curb and the flags. (Id., Exh. E).
While City argues that it may not be held liable to plaintiff as it was not responsible for maintaining the sidewalk in front of the premises, plaintiff's testimony and photographs show that the defect at issue extended into both the sidewalk and the abutting curbstone, and City may be held liable for a defect on a curb. (Administrativa Code § 19-101 [d] [definition of sidewalk does not include curb]; Alleyne v City of New York, 89 A.D.3d 970 [2d Dept 2012] [City may be held liable for defective condition on curb]; Garris v City of New York, 65 A.D.3d 953 [1st Dept 2009] [as property owner not obligated to maintain curb, it was not liable to plaintiff]).
Moreover, the Map reflects the existence of a broken or uneven curb in front of the premises, which constitutes prior written notice to City. (Burwell v City of New York, 97 A.D.3d 617 [2d Dept 2012]; Puello v City of New York, 90 A.D.3d 529 [1st Dept 2011]).
Thus, City has failed to demonstrate, prima facie, that it may not be held liable to plaintiff here. Accordingly, it is hereby
ORDERED, that defendant City of New York's motion to dismiss is denied.
