FUENTES v. The City of New York, et al., Defendants–Respondents. (2025)

Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered on or about August 17, 2023, which, to the extent appealed from as limited by the briefs, denied defendants 158 Management, LLC and Wiseman Management LLC's (collectively defendants) motion for summary judgment dismissing the complaint and cross-claims against them, granted plaintiff's motion for summary judgment on liability as against 158 Management, and granted The City of New York defendants’ (the City) motion for summary judgment dismissing defendants’ cross-claims against them, unanimously affirmed, without costs.

Plaintiff demonstrated that the doctrine of res ipsa loquitor was applicable here (see generally Ebanks v. New York City Tr. Auth., 70 N.Y.2d 621, 623, 518 N.Y.S.2d 776, 512 N.E.2d 297 [1987];  Aponte v. Bronx Preserv. Hous. Dev. Fund Corp., 202 A.D.3d 401, 401, 162 N.Y.S.3d 38 [1st Dept. 2022]).  The sidewalk collapse, which caused plaintiff's injuries, is not the type of event that ordinarily occurs in the absence of negligence.  The cellar vault which was underneath the sidewalk was in the exclusive control of 158 Management, the owner of the building, and could only be accessed through the basement door in the building.  158 Management offered no evidence to the contrary.  Further, the record is clear that plaintiff did not contribute to the accident since she was just standing on the sidewalk when it collapsed underneath her (see Williams v. Forward Realty Corp., 198 A.D.3d 503, 504, 156 N.Y.S.3d 159 [1st Dept. 2021]).

Plaintiff was not required to show that 158 Management had actual or constructive notice of the defective condition in the ceiling of the cellar vault, as such notice is inferred where res ipsa loquitor is applicable (see Ezzard v. One E. Riv. Place Realty Co., LLC, 129 A.D.3d 159, 163, 8 N.Y.S.3d 195 [1st Dept. 2015]).  Moreover, the doctrine may be employed even where the specific cause of the accident is known (see Abbott v. Page Airways, 23 N.Y.2d 502, 513, 297 N.Y.S.2d 713, 245 N.E.2d 388 [1969]).

With respect to the City, 158 Management admits that its building was not exempt from the mandates of Administrative Code of City of N.Y. § 7–210(b), but it contends that the responsibility to maintain the sidewalk “could” be shared with the City. However, no evidence was presented that any conduct by the City caused or created the condition or that it made special use of the sidewalk (see Rodriguez v. City of New York, 70 A.D.3d 450, 450, 895 N.Y.S.2d 358 [1st Dept. 2010]).  Mere speculation or conjecture is insufficient to defeat the City's motion (see Rivera v. City of New York, 210 A.D.3d 544, 545, 179 N.Y.S.3d 27 [1st Dept. 2022]).