| Araujo v City of New York |
| 2011 NY Slip Op 04183 [84 AD3d 993] |
| May 17, 2011 |
| 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. (Robert George Bombara, Howard Beach, N.Y., ofcounsel), for plaintiff-respondent. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (LauraA. Endrizzi of counsel), for third-party defendant-respondent.
Motion by the appellants-respondents to reargue appeals from two orders of the SupremeCourt, Kings County, both dated January 15, 2010, which were determined by decision and orderof this Court dated December 28, 2010.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted and the decision and order of this Court dated December28, 2010 (Araujo v City of NewYork, 79 AD3d 1076 [2010]), is recalled and vacated, and the following decision andorder is substituted therefor:
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 [*2]granted the motion of the third-party defendant, S.Scotto, for summary judgment dismissing the third-party complaint, and the defendant City ofNew York cross-appeals, as limited by its brief, from so much of the first order dated January 15,2010, as denied its cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against 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)contend that the Supreme Court erred in denying that branch of their motion which was forsummary judgment dismissing the complaint insofar as asserted against them. The evidencesubmitted by the Colonnas, including deposition testimony, photographs, and an expert affidavit,was insufficient to demonstrate, prima facie, that the alleged defect was trivial and, therefore, notactionable (see Bolloli v Waldbaum,Inc., 71 AD3d 618 [2010]; Hahn v Wilhelm, 54 AD3d 896 [2008]; Corrado v City of New York, 6 AD3d380 [2004]). Moreover, the Colonnas failed to establish, prima facie, that they did notcreate the alleged defect. Accordingly, the Supreme Court properly denied that branch of theColonnas' motion which was for summary judgment dismissing the complaint insofar as assertedagainst them (see Seith v City of New York, 293 AD2d 666 [2002]; Zito v City ofNew York, 293 AD2d 469 [2002]; Fraser v Fertig, 251 AD2d 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.