MENDEZ v. LLC (2006)

In an action to recover damages for personal injuries, the defendant Fisher Knickerbocker, LLC, appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated September 22, 2004, which denied its motion for summary judgment dismissing the complaint and cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs, the complaint and all cross claims are dismissed insofar as asserted against the defendant Fisher Knickerbocker, LLC, and the action against the remaining defendant is severed.

The appellant demonstrated its entitlement to judgment as a matter of law based on the deposition testimony of its building superintendent and an employee of the New York City Department of Transportation which established that the appellant, an abutting land owner, did not make special use of the public sidewalk where the plaintiff allegedly tripped and fell and neither created nor caused the defective condition (see Angulo v. City of New York, 5 A.D.3d 707, 773 N.Y.S.2d 573;  Cahill v. Foodland Deli of L.I., 270 A.D.2d 445, 705 N.Y.S.2d 299).   In response, the plaintiff failed to raise a triable issue of fact (see Cordova v. Vinueza, 20 A.D.3d 445, 798 N.Y.S.2d 519).

The plaintiff's remaining contention is without merit (see Sammarco v. City of New York, 16 A.D.3d 657, 794 N.Y.S.2d 54;  Soto v. City of New York, 1 A.D.3d 346, 766 N.Y.S.2d 219).