FATTY v. CITY OF NEW YORK (2024)

Order, Supreme Court, New York County (Judy H. Kim, J.), entered April 24, 2023, which granted the motion of defendants MEPT 757 Third Avenue LLC and MEPT Edgemoor Operating LP (collectively, MEPT) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

MEPT established prima facie entitlement to summary judgment through plaintiff's testimony and through photographic evidence, both of which demonstrated that the hole that caused plaintiff's fall was located not on the sidewalk abutting MEPT's building, but rather on the public street abutting the building's sidewalk/loading deck (see Trent–Clark v. City of New York, 114 A.D.3d 558, 558, 980 N.Y.S.2d 458 [1st Dept. 2014];  James v. 1620 Westchester Ave., LLC, 105 A.D.3d 1, 5, 962 N.Y.S.2d 4 [1st Dept. 2013]).  Plaintiff repeatedly testified that the hole was “on the side of the curb,” “on the edge of the roadway,” or “at the edge of the sidewalk and the street,” and MEPT had no duty to maintain that area (Administrative Code of the City of New York § 7–210;  see Ascencio v. New York City Hous. Auth., 77 A.D.3d 592, 593, 910 N.Y.S.2d 61 [1st Dept. 2010]).  In addition, by submitting the testimony of its managing agent, MEPT established that it did not cause or create the defective condition, nor did it have notice of the condition (see Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853 [2017]).

Plaintiff also failed to sustain his burden of showing that a special use of the street abutting the building contributed to the alleged defect.  The record contains no nonspeculative evidence showing that MEPT's alleged special use — namely, a curb cut to facilitate deliveries to its loading dock — caused or created the allegedly defective condition (see Trent–Clark, 114 A.D.3d 558, 980 N.Y.S.2d 458;  Marino v. Parish of Trinity Church, 67 A.D.3d 500, 501, 888 N.Y.S.2d 49 [1st Dept. 2009]).