| Teitelbaum v Crown Hgts. Assn. for the Betterment |
| 2011 NY Slip Op 04038 [84 AD3d 935] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Brocho Teitelbaum, Appellant, v Crown HeightsAssociation for the Betterment et al., Respondents. |
—[*1] Charles J. Siegel, New York, N.Y. (Richard Dell of counsel), for respondent Crown HeightsAssociation for the Betterment. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and DrakeA. Colley of counsel), for respondent City of New York.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Kings County (Velasquez, J.), dated March 22, 2010, as grantedthat branch of the motion of the defendant Crown Heights Association for the Betterment andthat branch of the cross motion of the defendant City of New York which were for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the cross motion of the defendant City of New York which was for summary judgmentdismissing the complaint insofar as asserted against it and substituting therefor a provisiondenying, as untimely, that branch of the cross motion; as so modified, the order is affirmedinsofar as appealed from, with one bill of costs to the plaintiff payable by the defendant City ofNew York, and one bill of costs to the defendant Crown Heights Association for the Bettermentpayable by the plaintiff.
The plaintiff allegedly tripped and fell on a brick protruding from a tree well in front of 305Kingston Avenue in Brooklyn. She commenced this action to recover damages for negligenceagainst the defendant Crown Heights Association for the Betterment (hereinafter CrownHeights), as owner of the real property located at 305 Kingston Avenue, and against thedefendant City of New York, as owner of the sidewalk on which the tree well was situated.Following discovery, Crown Heights timely moved, inter alia, for summary judgment dismissingthe complaint insofar as asserted against it, arguing that the plaintiff tripped and fell within a treewell, which was not part of the sidewalk for purposes of Administrative Code of the City of NewYork § 7-210, which imposes tort liability on property owners who fail to maintaincity-owned sidewalks in a reasonably safe condition. More than 120 days after the date the noteof issue was filed, the City cross-moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against it, contending, among other things, that it did not have priorwritten notice of the allegedly defective condition as required by section 7-201 (c) (2) of theAdministrative Code. In opposition to the City's cross motion, the plaintiff argued that the crossmotion [*2]was untimely. In the order appealed from, theSupreme Court granted those branches of Crown Heights's motion and the City's cross motionwhich were for summary judgment dismissing the complaint insofar as asserted against each ofthem. We modify.
Crown Heights met its prima facie burden of establishing that it was entitled to judgment as amatter of law, and in opposition to its summary judgment motion, the plaintiff failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Stukas v Streiter, 83 AD3d 18 [2dDept 2011]). The evidence—particularly, the photograph of the accident site upon whichthe plaintiff marked the protruding brick from the tree well that allegedly caused heraccident—plainly established that the brick was part of the tree well and not part of thesidewalk. A property owner's duty to maintain the sidewalk in a reasonably safe conditionpursuant to section 7-210 of the Administrative Code does not include tree wells (see Vucetovic v Epsom Downs, Inc.,10 NY3d 517, 518-519 [2008]). Accordingly, the Supreme Court properly granted thatbranch of Crown Heights's motion which was for summary judgment dismissing the complaintinsofar as asserted against it.
The Supreme Court, however, should have denied, as untimely, that branch of the City'scross motion which was for summary judgment dismissing the complaint insofar as assertedagainst it. The City failed to demonstrate good cause for its delay in making the cross motion(see CPLR 3212 [a]; Brill v Cityof New York, 2 NY3d 648, 652 [2004]; Bickelman v Herrill Bowling Corp., 49 AD3d 578, 580 [2008]).Contrary to the City's contention, the issues raised on its cross motion were not "nearly identical"to the issues raised on Crown Heights's motion (Ianello v O'Connor, 58 AD3d 684, 686 [2009]; see Joyner-Pack v Sykes, 54 AD3d727, 728 [2008]; Grande vPeteroy, 39 AD3d 590, 592 [2007]; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 496-497[2005]). Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.