| Cino v City of New York |
| 2008 NY Slip Op 02781 [49 AD3d 796] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Rosemary Cino et al., Respondents, v City of New York etal., Respondents, and HRH Construction, LLC, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for defendant-respondent City of New York.
In an action to recover damages for personal injuries, etc., the defendant HRH Construction,LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Solomon, J.), dated December 1, 2006, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it and granted the crossmotion of the defendant City of New York for summary judgment dismissing the complaint andall cross claims insofar as asserted against it.
Ordered that the appeal from so much of the order as granted that branch of the cross motionof the defendant City of New York which was for summary judgment dismissing the complaintinsofar as asserted against it is dismissed, as the appellant is not aggrieved by that portion of theorder; and it is further,
Ordered that the appeal from so much of the order as granted that branch of the cross motionof the defendant City of New York which was for summary judgment dismissing all cross claimsinsofar as asserted against it is dismissed as academic in light of our determination herein; and itis further,
Ordered that the order is reversed insofar as reviewed, on the law, and the motion of thedefendant HRH Construction, LLC, for summary judgment dismissing the complaint and all[*2]cross claims insofar as asserted against it is granted; and it isfurther,
Ordered that one bill of costs is awarded to the appellant.
The plaintiffs commenced this action against HRH Construction, Inc. (hereinafter HRH),among others, alleging that the plaintiff Rosemary Cino sustained injuries when she tripped andfell over the raised lip of a sidewalk flagstone. In the order appealed from, the Supreme Court,inter alia, denied HRH's motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it.
A contractor may be held liable for an affirmative act of negligence which results in thecreation of a dangerous condition upon a public street or sidewalk (see Brown v WelsbachCorp., 301 NY 202, 205 [1950]; Losito v City of New York, 38 AD3d 854 [2007]; Kleeberg vCity of New York, 305 AD2d 549 [2003]). In support of its motion for summary judgment,HRH met its burden of establishing its entitlement to judgment as a matter of law by submittingevidence demonstrating that it did not perform any work on the portion of the sidewalk where theaccident occurred, and thus did not create the allegedly defective condition which caused theinjured plaintiff to fall (see Roark v Hunting, 24 NY2d 470, 477 [1969]; Vrabel vCity of New York, 308 AD2d 443 [2003]; Kleeberg v City of New York, 305 AD2d549 [2003]; Perriconi v St. John's Preparatory High School, 290 AD2d 546 [2002]). Theparties who opposed the motion failed to submit evidence sufficient to raise a triable issue of fact(see Duckworth v Village of Monroe,38 AD3d 827 [2007]; Perriconi v St. John's Preparatory High School, 290 AD2d546 [2002]; Yass v Deepdale Gardens, 187 AD2d 506 [1992]). Accordingly, theSupreme Court should have granted HRH's motion.
In light of our determination, the parties' remaining contentions have been renderedacademic. Prudenti, P.J., Miller, Dillon and McCarthy, JJ., concur.