HUNTER v. Atlantic Demolition Corp., Defendant-Respondent. (2005)

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 1, 2004, which denied the motion of the Biltmore defendants and the cross motion of the City of New York for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the City's cross motion granted, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment dismissing the complaint as against defendant City of New York.

According to the complaint, plaintiff was injured when she tripped and fell on a City sidewalk abutting property owned by defendant Biltmore 47 Associates LLC.   Biltmore 47 retained defendant Atlantic Demolition to tear down certain structures on its property to make way for new construction performed by defendant Biltmore Construction Co.   It is undisputed that a plywood construction fence erected at the site by defendant Atlantic encroached on the adjacent sidewalk, limiting the pedestrian passageway to a portion of the sidewalk abutting a subway grating.

 The denial of summary judgment dismissing the action as against the Biltmore defendants was correct, since there are triable factual issues as to whether the sidewalk encroachment constituted a special use by them, and as to whether the encroachment proximately caused plaintiff's harm by directing her toward the alleged defect (see Ryan v. Gordon L. Hayes, Inc., 17 N.Y.2d 765, 270 N.Y.S.2d 423, 217 N.E.2d 145 [1966], affg. 22 A.D.2d 985, 254 N.Y.S.2d 706 [1964];  Curtis v. City of New York, 179 A.D.2d 432, 577 N.Y.S.2d 855 [1992], lv. denied 80 N.Y.2d 753, 587 N.Y.S.2d 905, 600 N.E.2d 632 [1992];  cf. Betances v. 700 W. 176th St. Realty Corp., 250 A.D.2d 504, 672 N.Y.S.2d 881 [1998] ).

 No triable issue of fact was raised, however, in response to the City's prima facie showing that it had not received notice of the defect.   Contrary to plaintiff's contention, the Big Apple map shows no defect at the site of the alleged accident (see Waldron v. City of New York, 175 A.D.2d 123, 571 N.Y.S.2d 816 [1991];  cf. Almadotter v. City of New York, 15 A.D.3d 426, 789 N.Y.S.2d 729 [2005];  Vasquez v. City of New York, 298 A.D.2d 187, 748 N.Y.S.2d 140 [2002] ).