| Serano v New York City Hous. Auth. |
| 2009 NY Slip Op 07614 [66 AD3d 867] |
| October 20, 2009 |
| Appellate Division, Second Department |
| John Serano et al., Appellants, v New York City HousingAuthority, Respondent, et al., Defendants. |
—[*1] Russo, Keane & Toner, LLP (Cullen and Dykman LLP, Brooklyn, N.Y. [Joseph Miller], ofcounsel), for respondent New York City Housing Authority.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), datedMarch 13, 2008, as granted that branch of the cross motion of the defendant New York CityHousing Authority which was for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the cross motion which was for summary judgment dismissing the complaint insofar asasserted against the defendant New York City Housing Authority is denied.
On June 17, 2000 the infant plaintiff John Serano allegedly tripped and fell when his sneakerbecame caught in a gap between a public sidewalk and the corner of a cellar door owned by thedefendant New York City Housing Authority (hereinafter the NYCHA). The accident occurredprior to the effective date of Administrative Code of the City of New York § 7-210, whichplaces upon certain landowners the obligation to maintain sidewalks in a safe condition, andimposes liability upon such landowners for injuries caused by their failure to do so (see Campos v Midway Cabinets, Inc.,51 AD3d 843 [2008]; Torres vCity of New York, 32 AD3d 347, 348 [2006]). Thus, the NYCHA "may be held liablefor the alleged defect in the sidewalk only if it 'either created the defective condition or causedthe defect to occur because of a special use' " (Campos v Midway Cabinets, Inc., 51AD3d at 843, quoting Breger v City of New York, 297 AD2d 770, 771 [2002]).
Contrary to the conclusion of the Supreme Court, the NYCHA failed to establish its primafacie entitlement to judgment as a matter of law by demonstrating that it neither created theallegedly defective condition nor caused it to occur through a special use of the sidewalk (see Nunez v City of New York, 41AD3d 677, 678 [2007]; Cuevas vCity of New York, 32 AD3d 372, 373 [2006]). Further, contrary to the contention of theNYCHA, it failed to make a prima facie showing that the alleged defect was trivial and,therefore, not actionable (see Trincere v County of Suffolk, 90 NY2d 976, 977-978[1997]; Portanova v Kantlis, 39AD3d 731 [2007]), or that the plaintiffs were merely speculating as to the cause of the infantplaintiff's fall (see Cuevas v City of New York, 32 AD3d at 373). Since the NYCHAfailed to meet its prima facie [*2]burden, the sufficiency of theplaintiffs' opposing papers need not be considered (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). Accordingly, the Supreme Court erred in granting that branch of theNYCHA's cross motion which was for summary judgment dismissing the complaint insofar asasserted against it.
The NYCHA's remaining contentions are without merit. Mastro, J.P., Santucci, Chambersand Lott, JJ., concur.