CORTWRIGHT v. CVS (2009)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 11, 2008, which, to the extent appealed from, denied the motions by defendants 2112 White Plains Road, LLC, ACHS Management Corp. and CVS Pharmacy, Inc., for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant the motion by 2112 White Plains Road and ACHS Management, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendants 2112 White Plains Road, LLC and ACHS Management Corp. dismissing the complaint as against them.

Defendants 2112 White Plains Road and ACHS Management established prima facie that they neither created a defective condition in the sidewalk nor used the sidewalk for a special purpose (see Romero v. ELJ Realty Corp., 38 A.D.3d 263, 831 N.Y.S.2d 72 [2007] ). ACHS's senior property manager testified that ACHS had no record of any sidewalk maintenance performed by ACHS in front of the CVS Pharmacy store where plaintiff Cortwright allegedly slipped and fell on the ramp in the curb. In opposition, plaintiffs offered no evidence to support either their allegation that 2112 and ACHS may have undertaken such a repair or their contention that 2112 and ACHS used the public sidewalk for their own special benefit (see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298-299, 532 N.Y.S.2d 105 [1988], lv. dismissed in part, denied in part 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671 [1988] ).

However, issues of fact remain whether defendant CVS Pharmacy engaged in repair work that may have created a defective condition that caused the accident, in light of CVS's allegation that third-party defendant Trammell Crow Corporate Services, which has not yet been deposed, negligently repaired the sidewalk where the accident occurred and the record evidence that before the accident CVS had made one call concerning the sidewalk on the “fixed line” it maintained for requesting repairs (see George v. New York City Tr. Auth., 306 A.D.2d 160, 761 N.Y.S.2d 182 [2003] ).