WEISS v. The New Fulton Fish Market Cooperative at Hunts Point, Inc., Defendant–Appellant. (2019)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about March 5, 2018, which, to the extent appealed from, denied the motion of defendant The New Fulton Fish Market Cooperative at Hunts Point, Inc. (Fulton) for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

In this action where plaintiff's decedent alleged that he was injured when he tripped and fell over broken cement barriers strewn over the sidewalk and roadway owned by defendant City of New York, Fulton failed to establish that maintenance of the accident location was not within its responsibilities under its lease with the City. Thus, Fulton did not demonstrate an absence of a duty of care owing to plaintiff's decedent (see Abramson v. Eden Farm, Inc., 70 A.D.3d 514, 894 N.Y.S.2d 429 [1st Dept. 2010] ).

In view of Fulton's failure to meet its prima facie burden, plaintiff's opposition papers need not be considered (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).  In any event, while there was no direct evidence as to who caused the dangerous condition, issues of fact were raised by the circumstantial evidence as to the liability of each of the defendants (see e.g. Koeppel v. City of New York, 205 A.D.2d 402, 613 N.Y.S.2d 389 [1st Dept. 1994] ).

We have considered the remaining arguments and find them unavailing.