| Khaimova v City of New York |
| 2012 NY Slip Op 04137 [95 AD3d 1280] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Guzi Khaimova, Respondent, v City of New York,Respondent, and I.D.D. Realty Corp. et al., Appellants. |
—[*1] William Pager, Brooklyn, N.Y., for plaintiff-respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and KristinM. Helmers of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendants I.D.D. Realty Corp. andShasette Linens, Inc., appeal, as limited by their notice of appeal and brief, from so much of anorder of the Supreme Court, Kings County (Velasquez, J.), dated November 10, 2010, as, uponreargument, adhered to its original determination in an order dated January 5, 2010, denying thatbranch of their cross motion which was for summary judgment dismissing the complaint and allcross claims insofar as asserted against them.
Ordered that the order dated November 10, 2010, is affirmed insofar as appealed from, withcosts.
As a general rule, this Court does not consider issues on a subsequent appeal which wereraised or could have been raised in an earlier appeal which was dismissed for lack of prosecution,although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut.Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). The defendantsI.D.D. Realty Corp. and Shasette Linens, Inc. (hereinafter together the appellants), appealed froma prior order of the Supreme Court dated January 5, 2010, which, inter alia, denied that branch oftheir cross motion which was for summary judgment dismissing the complaint and all crossclaims insofar asserted against them, but that appeal was dismissed for failure to prosecute afterthe Supreme Court, in an order dated November 10, 2010, made upon reargument, adhered to theoriginal determination. The better practice would have been for the appellants to withdraw theirprior appeal, rather than abandon it. Nonetheless, we exercise our discretion to review the issuesraised on the appeal from the order made upon reargument (see Maksuta v Galiatsatos, 62 AD3d 841 [2009]; Cesar v Highland Care Ctr., Inc., 37AD3d 393 [2007]).
"Generally, liability for injuries sustained as a result of negligent maintenance of or theexistence of dangerous and defective conditions to public sidewalks is placed on the municipality[*2]and not the abutting landowner" (Hausser v Giunta,88 NY2d 449, 452-453 [1996]; seeAlleyne v City of New York, 89 AD3d 970, 971 [2011]; Farrell v City of New York, 67 AD3d859, 860 [2009]). "Effective September 14, 2003, Administrative Code of the City of NewYork § 7-210, in effect, shifted liability for injuries arising from a defective sidewalk fromthe City of New York to the owner of the real property which abuts the defective sidewalk," withseveral exceptions not relevant here (Smirnova v City of New York, 64 AD3d 641, 642 [2009]; see Harakidas v City of New York, 86AD3d 624, 626 [2011]; Vidakovicv City of New York, 84 AD3d 1357, 1357-1358 [2011]). Contrary to the appellants'contention, the Supreme Court properly determined that the brick walkway where the plaintiffallegedly fell, which ran parallel to a concrete section of the sidewalk, was part of the "sidewalk"for purposes of liability under Administrative Code of the City of New York § 7-210. Thebrick walkway lay between the curb and the adjacent property lines, and was intended for the useof pedestrians, as evidenced by the placement of parking meters thereon (seeAdministrative Code of City of NY § 19-101 [d]; Harakidas v City of NewYork, 86 AD3d at 626; cf.Vucetovic v Epsom Downs, Inc., 10 NY3d 517 [2008]; Hartofil v McCourt & Trudden FuneralHome, Inc., 57 AD3d 943 [2008]). Moreover, the obligation on the abutting landowner"to install, construct, reconstruct, repave, repair or replace defective sidewalk flags"(Administrative Code of City of NY § 7-210 [b]) included an obligation to maintain thebrick walkway in this case in a reasonably safe condition (cf. Flynn v City of New York, 84 AD3d 1018 [2011]; Vidakovic v City of New York, 84AD3d 1357 [2011]; Smirnova vCity of New York, 64 AD3d 641 [2009]).
"[S]ection 7-210 does not impose strict liability upon the property owner, and the injuredparty has the obligation to prove the elements of negligence to demonstrate that an owner isliable" (Harakidas v City of New York, 86 AD3d at 627; see Martinez v Khaimov, 74 AD3d1031, 1032 [2010]). "Thus, in support of a motion for summary judgment dismissing a causeof action pursuant to section 7-210, the property owner has the initial burden of demonstrating,prima facie, that it neither created the hazardous condition nor had actual or constructive noticeof its existence for a sufficient length of time to discover and remedy it" (Harakidas v City ofNew York, 86 AD3d at 627). Here, although the appellants submitted evidencedemonstrating that they had no actual or constructive notice of the defective condition of thebrick walkway, the Supreme Court properly determined that the plaintiff raised a triable issue offact as to constructive notice (see Stevens v State of New York, 47 AD3d 624 [2008]; Sampino v Crescent Assoc., LLC, 34AD3d 779 [2006]).
Accordingly, the Supreme Court, upon reargument, properly adhered to its originaldetermination denying that branch of the appellants' cross motion which was for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them. Dillon,J.P., Leventhal, Hall and Austin, JJ., concur.