| Vidakovic v City of New York |
| 2011 NY Slip Op 04661 [84 AD3d 1357] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Alen Vidakovic, Respondent, v City of New York,Respondent and 200-202 Realty, LLC, Appellant, et al., Defendants. |
—[*1] Allen L. Rothenberg (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Bradley S. Hames], of counsel), for plaintiff-respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and KristinM. Helmers of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendant 200-202 Realty, LLC,appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Velasquez, J.), dated May 20, 2010, as denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the motion of the defendant 200-202 Realty, LLC, for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it is granted.
The plaintiff allegedly broke his leg on September 14, 2006, when he stepped on or in atriangular hole where a sidewalk met a pedestrian ramp. The sidewalk at issue is adjacent to thebuilding located at 200 Bedford Avenue in Brooklyn, which was purchased by the defendant200-202 Realty LLC (hereinafter Realty) in 2004. The plaintiff commenced this action against,among others, Realty and the City of New York on July 22, 2008. Realty moved for summaryjudgment dismissing the complaint and cross claims insofar as asserted against it, submitting insupport the affidavit of an engineer who stated that the hole was in a sloped, triangular piece ofconcrete that was part of the pedestrian ramp. The engineer based this conclusion on "ATSMstandard F 1637-95 entitled 'Standard Practice for Safe Walking Surfaces.' " In opposition, theplaintiff submitted the affidavit of his own expert engineer, who, in relying on the same standardas Realty's expert, concluded that the area where the plaintiff tripped was actually part of thesidewalk. The City cross-moved for summary judgment dismissing the complaint insofar asasserted against it.
In an order dated May 20, 2010, the Supreme Court, Kings County (Velasquez, J.), deniedboth Realty's motion and the City's cross motion. Realty appeals, and we reverse the order insofar[*2]as appealed from.
In 2003, the New York City Council adopted section 7-210 of the Administrative Code of theCity of New York, which shifted liability for injuries resulting from defective sidewalks from theCity to the abutting property owners (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517,519-520 [2008]). However, pedestrian ramps are not part of the sidewalk for the purpose ofimposing liability on abutting landowners pursuant to that provision (see Ortiz v City of NewYork, 67 AD3d 21, 27 [2009], revd on other grounds 14 NY3d 779 [2010]; seealso Rodriguez v Sequoia Prop. Mgt. Corp., 24 Misc 3d 822, 826-827 [2009]).
Here, Realty established its prima facie entitlement to summary judgment by submitting aphotograph of the area at issue and the affidavit of its expert, which established that the area inwhich the plaintiff tripped was part of the pedestrian ramp (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]; Stukas v Streiter, 83 AD3d 18 [2011]). Theaffidavit of the plaintiff's expert engineer failed to raise a triable issue of fact in opposition(see generally Guldy v Pyramid Corp., 222 AD2d 815 [1995]).
Therefore, the Supreme Court should have granted Realty's motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
In view of the foregoing, we reject the City's contention that we should search the record andgrant its cross motion for summary judgment. Angiolillo, J.P., Florio, Belen and Roman, JJ.,concur.