TOSTE v. CITY OF NEW YORK (2007)

In a consolidated action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of Supreme Court, Queens County (Elliot, J.), entered June 24, 2005, as granted that branch of the motion of the defendant Fischer Leverich, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured on April 2, 2002, when he fell on the sidewalk adjacent to property owned by the defendant Fischer Leverich, LLC (hereinafter Fischer).   Fischer established its prima facie entitlement to judgment as a matter of law by establishing that it did not negligently repair the subject sidewalk (see Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Hughes v. City of New York, 304 A.D.2d 618, 758 N.Y.S.2d 365).   In response, the plaintiff failed to raise a triable issue of fact, particularly since it was admitted that no construction was performed pursuant to a permit for sidewalk repair issued on July 11, 2001, for the accident location (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).