RIVERA v. CITY OF NEW YORK (2008)

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered December 21, 2007, which, in an action for personal injuries sustained in a trip and fall over a speed bump on premises owned and managed by defendant, insofar as appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, and granted third-party defendant asphalt contractor's motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to grant defendant's motion for summary judgment, and otherwise affirmed, without costs.   The Clerk is directed to enter a judgment dismissing the complaint and third-party complaint.

 The speed bump is located on a pedestrian walkway leading from the front door of the building where plaintiff's sister lives.   Although it was nighttime when plaintiff exited the building, the lights in the building's hallway were on, as were nearby street lights.   Defendant established its prima facie entitlement to summary judgment by showing that the speed bump was plainly observable and did not pose any danger to someone making reasonable use of his or her senses.   A photograph of the scene depicts a speed bump spanning the width of the walkway plainly visible in the illumination cast by two nearby street lights (see Tagle v. Jakob, 97 N.Y.2d 165, 169-170, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001];  Garrido v. City of New York, 9 A.D.3d 267, 779 N.Y.S.2d 208 [2004] ).   In opposition, plaintiff failed to adduce evidence sufficient to raise an issue of fact as to the existence of a dangerous or defective condition on the walkway (see Bastone v. 1144 Yonkers Ave., 266 A.D.2d 327, 698 N.Y.S.2d 166 [1999], lv. denied 97 N.Y.2d 605, 737 N.Y.S.2d 52, 762 N.E.2d 930 [2001];  Delia v. 1586 N. Blvd. Co. LLC, 27 A.D.3d 269, 812 N.Y.S.2d 45 [2006] ).   The third-party complaint for common-law and contractual indemnification was properly dismissed on a finding that third-party defendant contractor never performed any work on the speed bump.