WILSON v. PRIMUS REALTY LLC (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant A. Primus Realty, LLC, appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated January 24, 2023.  The order denied that defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell on a defect in a sidewalk in Brooklyn.  In an examination before trial, the plaintiff identified the defect as a hole in the sidewalk between two adjoining buildings, one of which was owned by the defendant A. Primus Realty, LLC (hereinafter Primus Realty), and the other by the defendant Keter SDM, LLC (hereinafter Keter).

Primus Realty moved for summary judgment dismissing the amended complaint insofar as asserted against it.  In support of its motion, Primus Realty submitted evidence that the hole upon which the plaintiff allegedly fell, though touching the sidewalk flag that abutted its property, was wholly on a sidewalk flag that abutted Keter's property.  In an order dated January 24, 2023, the Supreme Court denied the motion.  Primus Realty appeals.

Administrative Code of the City of New York § 7–210 shifts tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner and imposes a duty upon the property owner to maintain the sidewalk in a reasonably safe condition (see Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 171, 114 N.Y.S.3d 14, 137 N.E.3d 469;  Sangaray v. West Riv. Assoc., LLC, 26 N.Y.3d 793, 797, 28 N.Y.S.3d 652, 48 N.E.3d 933;  Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 520–521, 860 N.Y.S.2d 429, 890 N.E.2d 191).  On a motion for summary judgment, a defendant property owner is “required to do more than simply demonstrate that the alleged defect was on another landowner's property” (Sangaray v. West Riv. Assoc., LLC, 26 N.Y.3d at 799, 28 N.Y.S.3d 652, 48 N.E.3d 933).  To meet its prima facie burden, the property owner must establish that it maintained the portion of the sidewalk abutting its own property in a reasonably safe condition or that any failure to do so was not a proximate cause of the plaintiff's injuries (see id. at 799–800, 28 N.Y.S.3d 652, 48 N.E.3d 933;  Kuritsky v. Meshenberg, 211 A.D.3d 834, 836, 181 N.Y.S.3d 145).

Here, Primus Realty established that the portion of the sidewalk containing the hole identified by the plaintiff as the cause of her fall did not abut its property.  However, Primus Realty failed to establish that it maintained the adjoining sidewalk, which abutted its property, in a reasonably safe condition or that a failure to properly maintain the section of the sidewalk abutting its property was not a proximate cause of the plaintiff's injuries (see Sangaray v. West Riv. Assoc., LLC, 26 N.Y.3d at 800, 28 N.Y.S.3d 652, 48 N.E.3d 933;  Kuritsky v. Meshenberg, 211 A.D.3d at 836, 181 N.Y.S.3d 145;  Zborovskaya v. STP Roosevelt, LLC, 175 A.D.3d 1594, 1595, 109 N.Y.S.3d 344).

Since Primus Realty failed to meet its initial burden as the movant, the Supreme Court properly denied its motion for summary judgment dismissing the amended complaint insofar as asserted against it, without regard to the sufficiency of the opposition papers (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).

In light of our determination, we do not reach the parties’ remaining contentions.

DILLON, J.P., BRATHWAITE NELSON, FORD and VENTURA, JJ., concur.