ROA v. CITY OF NEW YORK (2020)

Order, Supreme Court, New York County (Julio Rodriguez, III, J.), entered May 3, 2019, which, to the extent appealed from, denied plaintiff's motion for partial summary judgment on the issue of liability as against defendant Consolidated Edison Company of New York (Con Ed), unanimously affirmed, without costs.

On January 17, 2016, plaintiff allegedly tripped and fell on a raised sidewalk flag.  It is undisputed that Con Ed had a nondelegable duty under 34 RCNY 2–07(b)(1) to inspect and maintain the area around the sidewalk flag, as it was within 12 inches of Con Ed's grate (see Storper v. Kobe Club, 76 A.D.3d 426, 906 N.Y.S.2d 543 [1st Dept. 2010] ).  However, plaintiff is not entitled to summary judgment against Con Ed, because she failed to establish constructive notice as a matter of law (see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011] ).  The 2011 Google map upon which plaintiff's expert relies to prove constructive notice is inconclusive.  Moreover, Con Ed raised a triable issue of fact as to whether it had notice of the sidewalk defect by submitting evidence that it found no such defect when it inspected the grate on February 26, 2014, and testimony by the managing agent of the building abutting the sidewalk that he had never complained to Con Ed about any defect (see Early v. Hilton Hotels Corp., 73 A.D.3d 559, 561, 904 N.Y.S.2d 367 [1st Dept. 2010] ).