| Lorenzo v Ortiz Funeral Home Corp. |
| 2014 NY Slip Op 00427 [113 AD3d 528] |
| January 23, 2014 |
| Appellate Division, First Department |
| Pilar Rivera Lorenzo, Plaintiff, v Ortiz FuneralHome Corporation et al., Respondents, and Electro Concourse Associates et al.,Appellants, et al., Defendants. |
—[*1] Safranek, Cohen & Krolian, White Plains (James G. Kelly of counsel), forrespondents.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered June 27, 2013,which denied the motion of defendants-appellants Electro Concourse Associates andStellar Management, LLC for summary judgment dismissing the complaint and crossclaims as against them, unanimously reversed, on the law, without costs, the motiongranted and, upon a search of the record, the cross motion of defendants-appellantsE.S.D. Corp. and Corky's Restaurant for summary judgment dismissing the complaintand cross claims as against them granted as well. The Clerk is directed to enter judgmentin favor of said defendants accordingly. Appeal from so much of the same order asdenied the cross motion, unanimously dismissed, without costs, as abandoned.
Plaintiff and her daughter testified at their depositions that plaintiff was injured whenshe tripped and fell over the raised or elevated portion of a public sidewalk located near adiner and a funeral home. Defendants Electro Concourse Associates and StellarManagement (Electro/Stellar) own and manage, respectively, a mixed use building nextdoor to a building owned by defendants-respondents, who run a funeral home there.Defendants E.S.D. Corp. and Corky's Restaurant operate a small diner in a storefrontthey rent from Electro/Stellar.
In support of their motion for summary judgment, Electro/Stellar met their primafacie burden by submitting the affidavit of an engineer who opined that the concrete slabin front of the funeral home had become raised as a result of tree roots pushing up, andthat Electro/Stellar had not contributed to the defect, and the affidavit of a land surveyorwho opined that the raised slab was located entirely in front of the property owned by thefuneral home, and not in front of the property owned by Electro/Stellar. Since thesidewalk defect that caused the accident was located in front of the neighboring propertyand was not caused or created by Electro/Stellar, they [*2]did not have any obligation to repair the defect (see Mitchell v Icolari, 108AD3d 600, 601-602 [2d Dept 2013]; Administrative Code of City of NY §7-210; see also Galindo v Townof Clarkstown, 2 NY3d 633, 636 [2004]). Defendants E.S.D. Corp. and Corky'sRestaurant cross-moved for summary judgment relying on the same arguments andevidence.
Plaintiff did not oppose the motion or cross motion. The funeral home defendantsopposed, submitting only photographs taken by Electro/Stellar's engineering expert,which were insufficient to raise an issue of fact as to the location of the raised sidewalkthat plaintiff testified caused her accident. Since the funeral home defendants failed toraise an issue of fact, the motion for summary judgment dismissing all claims and crossclaims against Electro/Stellar was warranted. Upon a search of the record, summaryjudgment is also granted to defendants E.S.D. Corp. and Corky's Restaurant since theissue of duty to repair the defect is identical as it relates to them, notwithstanding theirfailure to pursue their appeal (see Brewster v FTM Servo, Corp., 44 AD3d 351 [1st Dept2007]; CPLR 3212 [b]). Concur—Tom, J.P., Acosta, Andrias, Freedman andFeinman, JJ.