GIRARD v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (2020)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about December 14, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant made a prima facie showing of entitlement to summary judgment by submitting evidence demonstrating that it does not own the location where plaintiff alleges she fell or the property abutting the public sidewalk in that area (see Administrative Code of City of N.Y. § 7–210;  Cohen v. City of New York, 101 A.D.3d 426, 955 N.Y.S.2d 565 [1st Dept. 2012]).  Defendant also demonstrated it did not create the alleged condition by submitting affidavits from employees who averred that they were familiar with defendant's construction activities at the time of the accident and that it performed no construction work at the subject location before the accident (see Camacho v. City of New York, 135 A.D.3d 482, 482–483, 24 N.Y.S.3d 238 [1st Dept. 2016];  Melcher v. City of New York, 38 A.D.3d 376, 377, 832 N.Y.S.2d 186 [1st Dept. 2007]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant caused or created the alleged defect.  Her claim that defendant's subsurface work or its contractor's snow or trash removal activities at the accident location created the complained-of height differential in the pavement is speculative, given that she submitted no expert affidavit or any evidence that would demonstrate the existence of a question of fact as to how those activities proximately caused the alleged condition (see Jones v. Consolidated Edison Co. of N.Y., Inc., 95 A.D.3d 659, 661, 944 N.Y.S.2d 544 [1st Dept. 2012]).

Furthermore, plaintiff's claim that defendant owed her a duty of care to maintain the sidewalk because it owned 2 World Trade Center is not preserved for appellate review (see Leitner v. 304 Assoc., LLC, 129 A.D.3d 415, 416, 10 N.Y.S.3d 425 [1st Dept. 2015]).  In any event, plaintiff alleges that she fell on the sidewalk across the street from that property.