ORTIZ v. Dominick Eugene etc., Defendant–Appellant. (2024)

Order, Supreme Court, Bronx County (Allison Y. Tuitt, J.), entered April 4, 2023, which denied the motion of defendant Dominick Eugene as Executor of the Estate of Marco Eugene (the estate) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The estate failed to meet its prima facie burden on its motion, as it submitted no evidence showing that it did not either create the sidewalk defect or have actual or constructive notice of it (see Spector v. Cushman & Wakefield, Inc., 87 A.D.3d 422, 423, 928 N.Y.S.2d 9 [1st Dept. 2011]).  The estate admits that as the owner of the premises it had a duty to maintain the sidewalk under Administrative Code of City of N.Y. § 7–210.  It, however, does not refute plaintiff's claim that the sidewalk was defective.  We reject the estate's argument that it is entitled to summary judgment because plaintiff failed to “prove” that the sidewalk was the cause of his fall, as that argument constitutes an improper attempt to shift the burden to plaintiff on summary judgment (see Katz v. United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462, 23 N.Y.S.3d 183 [1st Dept. 2016]).

In view of the estate's failure to meet its prima facie burden, it is unnecessary to determine whether plaintiff raised a triable issue of fact in his opposition papers (see Bahnyuk v. Reed, 174 A.D.3d 481, 483, 106 N.Y.S.3d 47 [1st Dept. 2019]).