CARDENAS v. [And Other Third-Party Actions]. (2025)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered October 15, 2024, which granted the motion of defendants Betances Rad LLC and Wavecrest Management Group LLC and the cross-motion of defendant Crew Contracting of NJ Inc. (Crew) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff was injured when a vehicle drove off the roadway and struck her as she walked on the sidewalk.  According to plaintiff's testimony, a sidewalk shed blocked her view of the sidewalk, preventing her from reacting to the oncoming vehicle.  Plaintiff also testified that more than a month before the incident, she complained to the management of her apartment building that the shed obstructed her view of the sidewalk.

Defendants established prima facie entitlement to summary judgment by submitting the affidavit of their expert professional engineer, who opined that the shed was installed in compliance with New York City codes, did not obstruct visibility between the building's entrance and the sidewalk, and was not a proximate cause of the accident.  Plaintiff's challenge to the expert's conclusion is improperly raised for the first time in her reply brief (see Mandour v. Rafalsky, 238 A.D.3d 637, 639, 235 N.Y.S.3d 37 [1st Dept. 2025]).  In any event, plaintiff does not point to any evidence raising an issue of fact.  Even assuming the truth of plaintiff's contention that the shed blocked her view of the sidewalk, property owners have no duty to protect pedestrians from the unforeseeable risk of vehicles driving on the sidewalk (see Britton v. Riley–Fann, 171 A.D.3d 410, 411, 96 N.Y.S.3d 216 [1st Dept. 2019];  Green v. Himon, 165 A.D.3d 590, 591, 87 N.Y.S.3d 22 [1st Dept. 2018], lv denied 33 N.Y.3d 901, 2019 WL 1460786 [2019]).

We reject plaintiff's argument that because Crew did not participate in discovery, the motion court prematurely granted its motion for summary judgment.  Plaintiff fails to show that any proof necessary for her opposition to the motion was exclusively within Crew's possession, as plaintiff never complained to Crew about the shed.  In any event, as Crew notes and plaintiff does not dispute, plaintiff never tried to obtain any discovery from Crew (see CPLR 3212[f];  Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 557, 843 N.Y.S.2d 630 [1st Dept. 2007] [citations omitted]).