| Hines v City of New York |
| 2007 NY Slip Op 06637 [43 AD3d 869] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Leslie Hines, Respondent, v City of New York,Respondent, Kings Village Corp., Respondent-Appellant, and Zelpher Peart et al.,Appellants-Respondents. |
—[*1] Margaret G. Klein & Associates (Greater New York Mutual Insurance Company, New York,N.Y. [Thomas D. Hughes, Richard C. Rubinstein, and David D. Hess] of counsel), forrespondent-appellant. The Dweck Law Firm, LLP, New York, N.Y. (H. P. Sean Dweck and David M. Goldstein ofcounsel), for plaintiff-respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and JanetL. Zaleon of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendants Zelpher Peart andEdwin W. Peart appeal, and the defendant Kings Village Corp. separately appeals, as limited bytheir respective briefs, from so much of an order of the Supreme Court, Kings County (Solomon,J.), dated July 28, 2006, as denied their respective motions for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them and granted that branch of theplaintiff's motion which was for leave to file and serve an amended complaint alleging anadditional cause of action to recover damages for wrongful death.[*2]
Ordered that the order is modified, on the law, by (1)deleting the provision thereof denying the motion of the defendants Zelpher Peart and Edwin W.Peart for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them, and substituting therefor a provision granting that motion and (2) deleting theprovision thereof granting that branch of the plaintiff's motion which was for leave to serve andfiled an amended complaint asserting a cause of action to recover damages for wrongful deathagainst the defendants Zelpher Peart and Edwin W. Peart, and substituting therefor a provisiondenying that branch of the plaintiff's motion; as so modified, the order is affirmed insofar asappealed and cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Zelpher Peart and Edwin W. Peartpayable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendantKings Village Corp.
"Generally, liability for injuries sustained as a result of dangerous and defective conditionson public sidewalks is placed on the municipality and not the abutting landowner. . . However, an abutting landowner may be held liable to a pedestrian injured by adefect in a public sidewalk where, inter alia, the landowner negligently constructed or repairedthe sidewalk or otherwise created the defective condition, or caused the defect to occur by somespecial use of the sidewalk" (Bruno vCity of New York, 36 AD3d 640, 640-641 [2007] [citations omitted]; see Hausser vGiunta, 88 NY2d 449, 452-453 [1996]).
The defendants Zelpher Peart and Edwin W. Peart (hereinafter the Pearts) established theirprima facie entitlement to judgment as a matter of law by submitting evidence in admissible formdemonstrating that they were not the owners of the property abutting that part of the publicsidewalk on which the accident occurred, and that, in any event, they did not negligentlyconstruct or repair the sidewalk or otherwise create the defective condition, or cause the defect tooccur by some special use of the sidewalk (see Rodgers v City of New York, 34 AD3d 555 [2006]). Inopposition, the plaintiff and the defendant Kings Village Corp. (hereinafter Kings Village) failedto raise a triable issue of fact (see Nilsenv City of New York, 28 AD3d 625, 626 [2006]; Meyer v Guinta, 262 AD2d463, 463-464 [1999]). Accordingly, the Supreme Court erred in denying the Pearts' motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem.
The Supreme Court, however, properly denied Kings Village's cross motion. Having failed tocarry its prima facie burden of proof, Kings Village was not entitled to judgment as a matter oflaw (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]; Immerman v City of New York, 22AD3d 726 [2005]).
Moreover, the Supreme Court providently exercised its discretion in granting that branch ofthe plaintiff's motion which was for leave to file and serve an amended complaint asserting anadditional cause of action to recover damages for wrongful death against the defendants City ofNew York and Kings Village, as the proposed amendment was not palpably without merit andwould result in no surprise or prejudice to the defendants (see CPLR 3025 [b]; Francis v Nassau Health Care Corp., 22AD3d 715 [2005]). Miller, J.P., Goldstein, Fisher and Covello, JJ., concur.