RODRIGUEZ v. IMS (2010)

Henry RODRIGUEZ, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant, IMS Hospital Services, Inc., Defendant.

Decided: February 09, 2010

TOM, J.P., ANDRIAS, FRIEDMAN, NARDELLI, CATTERSON, JJ.

Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for appellant. Greenstein & Milbauer, LLP, New York (Andrew Bokar of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered December 1, 2008, which, upon reargument, denied defendant the City of New York's motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against the City of New York.

The City established prima facie that it did not own the real property abutting the sidewalk on which plaintiff fell and that the property was a vacant lot, and that therefore, pursuant to Administrative Code of City of N.Y. § 7-210(c), it was not liable for plaintiff's injuries. In opposition, plaintiff failed to raise any issues of fact.

Plaintiff's reliance on Administrative Code § 7-212 is unavailing. Section 7-212, which authorizes the comptroller to make payments, at his discretion and under certain conditions, to an individual injured because of a defective sidewalk, does not create a right of action against the City.

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