| Garris v City of New York |
| 2009 NY Slip Op 06649 [65 AD3d 953] |
| September 24, 2009 |
| Appellate Division, First Department |
| Rebecca Garris, Respondent, v City of New York et al.,Defendants, and Joseph Orbach et al., Appellants. |
—[*1] Budd Larner, P.C., New York (Averim Stavsky of counsel), for respondent.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered December 18, 2008,which denied the motion of defendants Joseph Orbach and Sidney Orbach and/or Lighthouse 37,LLC (collectively Lighthouse) for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, the motion granted and the complaint dismissed as to saiddefendants. The Clerk is directed to enter judgment accordingly.
Lighthouse met its burden on summary judgment with a prima facie showing establishing asa matter of law that plaintiff did not trip on the sidewalk, but rather on a "gap" between the metalportion of the curb and the concrete portion of the curb, and that Lighthouse neither caused norcreated the defect involved in plaintiff's accident (see Miller v City of New York, 253AD2d 394, 395-396 [1998]). Since Administrative Code of the City of New York §19-101 (d) defines sidewalk as "that portion of a street between the curb lines, or the lateral linesof a roadway, and the adjacent property lines, but not including the curb, intended for theuse of pedestrians" (emphasis added), the Lighthouse defendants were not obligated to maintainthe curb and are not liable to plaintiff (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517 [2008] [treewell]; Ortiz v City of New York,— AD3d —, 2009 NY Slip Op 06299[2009] [pedestrian ramp]; Fernandez vHighbridge Realty Assoc., 49 AD3d 318 [2008] [multiple-flight stairway runningbetween two avenues]). The certified transcript of plaintiff's General Municipal Law §50-h examination was properly submitted by [*2]Lighthouse, asan admission, in support of its motion (see Morchik v Trinity School, 257 AD2d 534,536 [1999]; Claypool v City of New York, 267 AD2d 33, 35 [1999]).Concur—Tom, J.P., Sweeny, McGuire, DeGrasse and Freedman, JJ.