| Araujo v City of New York |
| 2010 NY Slip Op 09872 [79 AD3d 1076] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Elena Araujo, Respondent, v City of New York,Respondent-Appellant, and Vito Colonna et al., Defendants/Third-PartyPlaintiffs-Appellants-Respondents. S. Scotto, Third-PartyDefendant-Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and JulieSteiner of counsel), for respondent-appellant. Michael F. Kanzer & Associates, P.C. (RobertGeorge Bombara, Howard Beach, N.Y., of counsel), for plaintiff-respondent. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (LauraA. Endrizzi of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the defendants/third-party plaintiffs,Vito Colonna and Maria Colonna, appeal (1), as limited by their brief, from so much of an orderof the Supreme Court, Kings County (Velasquez, J.), dated January 15, 2010, as denied thatbranch of their motion which was for summary judgment dismissing the complaint insofar asasserted against them, and (2) from an order of the same court, also dated January 15, 2010,which granted the motion of the third-party defendant, S. Scotto, for summary judgmentdismissing the third-party complaint, and the defendant City of New York cross-appeals, aslimited by its brief, from so much of the first order dated January 15, 2010, as denied its crossmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it.
Ordered that the first order dated January 15, 2010, is affirmed insofar as appealed andcross-appealed from; and it is further,
Ordered that the second order dated January 15, 2010, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the third-party defendant, payable by thedefendants/third-party plaintiffs, and one bill of costs is awarded to the plaintiff, payable by thedefendants.
The defendants Vito Colonna and Maria Colonna (hereinafter together the Colonnas) [*2]contend that the Supreme Court erred in denying that branch oftheir motion which was for summary judgment dismissing the complaint insofar as assertedagainst them. The evidence submitted by the Colonnas, including deposition testimony,photographs, and an expert affidavit, was insufficient to demonstrate, prima facie, that thealleged defect was trivial and, therefore, not actionable (see Bolloli v Waldbaum, Inc., 71 AD3d 618 [2010]; Hahn v Wilhelm, 54 AD3d 896[2008]; Corrado v City of NewYork, 6 AD3d 380 [2004]). Moreover, there was conflicting evidence as to who maderepairs on the sidewalk in front of the Colonnas' house. Accordingly, the Supreme Court properlydenied that branch of the Colonnas' motion which was for summary judgment dismissing thecomplaint insofar as asserted against them (see Seith v City of New York, 293 AD2d 666[2002]; Zito v City of New York, 293 AD2d 469 [2002]; Fraser v Fertig, 251AD2d 621 [1998]; Botfeld v City of New York, 162 AD2d 652 [1990]).
The defendant City of New York also contends that the Supreme Court erred in denying itscross motion for summary judgment dismissing the complaint and all cross claims insofar asasserted against it. However, since a triable issue of fact exists as to whether the defect wastrivial and nonactionable, the Supreme Court properly denied the City's cross motion.
Contrary to the Colonnas' contention, the Supreme Court properly granted the motion of thethird-party defendant, S. Scotto, an adjacent landowner to the Colonnas, for summary judgmentdismissing the third-party complaint. S. Scotto established, prima facie, that he did not create adefect or hazardous condition on the sidewalk in front of the Colonnas' home (see Hines v City of New York, 43AD3d 869 [2007]; Rodgers v Cityof New York, 34 AD3d 555 [2006]; Alexopoulos v City of New York, 33 AD3d 828 [2006]).Moreover, with regard to the claims for contractual indemnification and breach of contractasserted against S. Scotto, S. Scotto demonstrated that there was no contract between himself andthe Colonnas. In opposition, the Colonnas failed to raise a triable issue of fact. Skelos, J.P.,Florio, Balkin and Leventhal, JJ., concur.
[Recalled and vacated, see 84 AD3d 993.]