| Gerardi v Verizon N.Y., Inc. |
| 2009 NY Slip Op 07798 [66 AD3d 960] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Richard Gerardi, Respondent, v Verizon New York, Inc.,et al. Appellants. |
—[*1] Kenneth J. Ready, Mineola, N.Y. (Brian C. Pascale of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Balter, J.), dated January 28, 2009, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff's decedent allegedly was injured on June 2, 2004, when he stumbled and fellbecause of a defect in a public sidewalk near a pay telephone, which had been installed in 1976by New York Telephone Company, the corporate predecessor of the defendant Verizon NewYork, Inc. After issue was joined, the defendants moved for summary judgment dismissing thecomplaint.
The defendants met their initial burden establishing their entitlement to judgment as a matterof law by demonstrating that they did not own, maintain, operate, or control the publicsidewalks, and had no duty to exercise reasonable care with respect to the area where theplaintiff's decedent fell (see Administrative Code of City of NY § 7-201; Arpi v New York City Tr. Auth., 42AD3d 478, 479 [2007]). Moreover, there was no evidence that the defendants created thealleged defect or that they benefitted from that portion of the sidewalk in a manner different fromthat of the general population so as to impute liability upon them based upon a theory of specialuse (see Gasis v City of New York,35 AD3d 533, 534 [2006]).
In opposition, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b])as to whether the defendants bore any liability for the occurrence. The plaintiff's expert affidavitshould not have been considered in determining the motion since the expert was not identified bythe plaintiff until after the note of issue and certificate of readiness were filed attesting to thecompletion of discovery (seeConstruction by Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863 [2008]),and the plaintiff offered no valid excuse for his delay in identifying his expert (see CPLR3101 [d] [1]; Wartski v C.W. PostCampus of Long Is. Univ., 63 AD3d 916, 917 [2009]). In any event, even if theplaintiff's expert affidavit could have properly been considered, the result would not have beendifferent (see Wartski v C.W. PostCampus of Long Is. Univ., 63 AD3d 916 [2009]). The plaintiff's remaining contentionis without merit.[*2]
Accordingly, the Supreme Court should have granted thedefendants' motion for summary judgment dismissing the complaint. Fisher, J.P., Covello,Dickerson and Lott, JJ., concur.