MCALLISTER v. CITY OF NEW YORK (2019)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered April 27, 2018, which granted defendant City's motion for summary judgment dismissing the complaint and cross claims against it, unanimously affirmed, without costs.

The City established that it did not own or control the walkway on which the decedent (whose death was unrelated to the alleged incident) allegedly tripped and fell into a hole by submitting a deed showing that the property belonged to defendant Housing Authority (N.Y.CHA).  The City also established that it did not cause or create the condition by submitting records showing that it did not perform any work in the area during the relevant period (see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296–297, 532 N.Y.S.2d 105 [1st Dept. 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] ).  One service request in the vicinity of the accident site identified by plaintiff and NYCHA concerned a hole created by an undersized steel plate or manhole cover in a playground.  However, the decedent's deposition testimony made no mention of a steel plate, and the decedent testified that the hole he fell on was on the walkway, not in a playground.

Contrary to NYCHA's contention, the City's sewer easement running under the walkway does not impose a duty on the City to maintain or repair the sidewalk, which, according to the unrefuted testimony of a witness, is at least 10 or 20 feet above the easement, unless the easement causes the dangerous condition.  The City established that there is no evidence that the hole that caused the accident was related in any way to the easement.  In opposition, NYCHA failed to present evidence sufficient to raise an issue of fact as to the cause or creation of the hole.

Contrary to NYCHA's further contention, responsibility for maintaining the walkway in a reasonably safe condition cannot be imposed upon the City on the ground that the City derives a special benefit from the public property, because the public benefits from the easement (see Kaufman v. Silver, 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417 [1997] ).

We have considered NYCHA's remaining arguments and find them unavailing.