| Pevzner v 1397 E. 2nd, LLC |
| 2012 NY Slip Op 04984 [96 AD3d 921] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Eduard Pevzner et al., Appellants, v 1397 E. 2nd, LLC, etal., Respondents, et al., Defendant. |
—[*1] Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L. Gokhulsingh of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), datedOctober 17, 2011, as granted that branch of the motion of the defendants 1397 E. 2nd, LLC, andFTC Management, Inc., which was for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendants 1397 E. 2nd, LLC, and FTC Management, Inc., whichwas for summary judgment dismissing the complaint insofar as asserted against them is denied.
The injured plaintiff allegedly fell and sustained injuries while walking on East 2nd Street inBrooklyn when he stepped into an unpaved square of ground next to the curb measuringapproximately three feet by three feet. The injured plaintiff, and his wife suing derivatively,commenced this action against, among others, the abutting owner, 1397 E. 2nd, LLC, and itsmanaging agent, FTC Management, Inc. (hereinafter together the movants). On their motion,inter alia, for summary judgment dismissing the complaint insofar as asserted against them, themovants contended that the alleged defect at issue was a city-owned tree well which they had noduty to maintain. The Supreme Court granted their motion. The plaintiffs appeal, and we reversethe order insofar as appealed from.
Contrary to the plaintiffs' contentions, the motion was timely made within 60 days after thefiling of the note of issue (see CPLR 3212 [a]; Kings County Supreme Court UniformCivil Term Rules, part C, rule 6 [formerly rule 13]), and the Supreme Court providently reviewedthe unsworn deposition transcripts submitted in support of the motion, since they were certifiedby the reporters and the plaintiffs did not challenge their accuracy (see Zalot v Zieba, 81 AD3d 935[2011]; see also Rodriguez v RyderTruck, Inc., 91 AD3d 935 [2012]). However, the evidence submitted by the movants didnot establish their prima facie entitlement to judgment as a matter of law.[*2]
Administrative Code of the City of New York §7-210, which became effective September 14, 2003, shifted tort liability for injuries arising froma defective sidewalk from the City of New York to the abutting property owner. However, a treewell does not fall within the applicable Administrative Code definition of "sidewalk" and, thus,"section 7-210 does not impose civil liability on property owners for injuries that occur incity-owned tree wells" (Vucetovic vEpsom Downs, Inc., 10 NY3d 517, 521 [2008]; see Vellios v Green Apple, 84 AD3d 1356 [2011]; Teitelbaum v Crown Hgts. Assn. for theBetterment, 84 AD3d 935 [2011]; Grier v 35-63 Realty, Inc., 70 AD3d 772 [2010]). Here, themovants failed to establish, prima facie, that the alleged defect was a city-owned tree well whichthey had no duty to maintain (seeHarakidas v City of New York, 86 AD3d 624, 626 [2011]; cf. Vellios v Green Apple, 84 AD3d1356 [2011]; Grier v 35-63 Realty, Inc., 70 AD3d at 772-773). Moreover, themovants failed to satisfy their burden of demonstrating, prima facie, that they neither created theallegedly hazardous condition nor had actual or constructive notice of its existence for asufficient length of time to discover and remedy it (see Harakidas v City of New York, 86AD3d at 627). Since the movants failed to establish their entitlement to judgment as a matter oflaw, we need not review the sufficiency of the plaintiffs' opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, the Supreme Court should have denied that branch of the motion which was forsummary judgment dismissing the complaint insofar as asserted against the movants. Angiolillo,J.P., Florio, Belen and Chambers, JJ., concur.