CUENCA v. Dominican Sisters of Hope, Inc., et al., Defendants–Respondents. (2019)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about September 27, 2017, which granted the motion of defendants Dominican Sisters of Hope, Inc. and Dominican Sisters Family Health Services, Inc. (collectively Dominican) and the cross motion of defendant Capri Landscaping, Inc. (Capri) for summary judgment dismissing the complaint and all cross claims as against them, unanimously modified, on the law, Capri's motion to dismiss the complaint denied, and otherwise affirmed, without costs.

Defendants each established their prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when she tripped and fell on the sidewalk.  Dominican showed that they had no liability for plaintiff‘s trip and fall since plaintiff fell in front of 278 Alexander Avenue while Dominican's premises was located at 280 Alexander Avenue.  Dominican relied, in part, on the expert testimony of a surveyor that shows that the location of the accident was within the property lines of 278 Alexander Avenue.  Capri provided a sworn statement that it did not perform any work on the sidewalk where plaintiff fell (see Flores v. City of New York, 29 A.D.3d 356, 358–359, 815 N.Y.S.2d 48 [1st Dept. 2006]).

In opposition, plaintiff failed to raise a triable issue of fact with respect to Dominican.  The affidavit of defendant Lopez, the owner of 278 Alexander Avenue, lacked a statement indicating either the cause of plaintiff's fall, or any basis to factually dispute the exact location of the sidewalk boundaries in relation to the location of the fall (see Grullon v. City of New York, 297 A.D.2d 261, 262–263, 747 N.Y.S.2d 426 [1st Dept. 2002]).  Plaintiff has, however, raised an issue of fact regarding Capri, relying on awork permit for sidewalk repair, issued approximately five days before the accident and covering an area that included the location of the accident.