NAPOLITANO v. 536 NINTH LLC (2023)

Order, Supreme Court, New York County (Lyle Frank, J.), entered on or about September 8, 2022, which granted defendants motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This personal injury action arose on August 21, 2015, when plaintiff was riding his bicycle in the bike lane in front of 536 Ninth Avenue in Manhattan, where he fell due to an oil hose on the ground.  The hose extended from a delivery truck, allegedly owned by defendant Four Suns Fuel Oil Co., Inc. (Four Suns), to the building at 536 Ninth Avenue, owned by defendant 536 Ninth LLC (536 Ninth).

Supreme Court properly granted defendants’ motions for summary judgment dismissing the complaint because they met their prima facie burden by establishing that Four Suns did not deliver oil to 536 Ninth on the incident date (see 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]).  Plaintiff's proffer in response consisted of mere conjecture and speculation, and thus failed to raise a triable issue of fact (see Wiener v. City of New York, 60 A.D.3d 598, 598, 877 N.Y.S.2d 247 [1st Dept. 2009]).  Plaintiff admitted that he could not identify who placed the hose across the Ninth Avenue bike lane.  While 536 Ninth's property manager testified that Four Suns was the exclusive provider of oil to 536 Ninth, she also testified the building's commercial tenants were required to provide their own heat and utilities and had their own basements, suggesting that other oil deliveries might be made to the building.

Plaintiff abandoned his challenges to dismissal of the claims against 536 Ninth because he failed to address them on appeal (see 87 Chambers, LLC v. 77 Reade, LLC, 122 A.D.3d 540, 542, 998 N.Y.S.2d 15 [1st Dept. 2014];  Furlender v. Sichenzia Ross Friedman Ference LLP, 79 A.D.3d 470, 912 N.Y.S.2d 204 [1st Dept. 2010]).

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