MALDONADO v. (and third-Party actions). (2019)

DECISION & ORDER

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

The plaintiff commenced this action against, among others, the defendant 527 Lincoln Place, LLC (hereinafter Lincoln).  The plaintiff sought to recover damages for injuries allegedly sustained by him on January 5, 2010, when he tripped and fell due to a hole in an asphalt-filled trench on a public sidewalk in Brooklyn that abutted property owned by Lincoln.  It is undisputed that National Grid, through its contractors, constructed the asphalt-filled trench on which the plaintiff allegedly fell.  The trench was part of a gas main replacement project that spanned almost the entire block of Lincoln Place between Classon and Franklin Avenues.  Hallen Construction and paving contractor New York Paving undertook the project on behalf of National Grid in July 2009.

Following the completion of discovery, Lincoln moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it.  The Supreme Court granted that branch of the motion, and the plaintiff appeals.

We agree with the Supreme Court's determination granting that branch of Lincoln's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.  Lincoln established, prima facie, that, under the circumstances, the duty to maintain the asphalt-filled trench was imposed upon National Grid. National Grid had a statutory obligation, under Administrative Code of the City of New York § 19–147 and the Rules of City of New York Department of Transportation (34 RCNY) § 2–11(e)(16), to repair and restore the subject sidewalk (see Administrative Code of City of N.Y. § 19–147[a];  34 RCNY 2–11[e][16]).  Moreover, as a permittee performing work to the public sidewalk, National Grid was liable for any “damage ․ to persons, animals or property by reason of negligence in any manner connected with the work” (Administrative Code of City of N.Y. § 19–110).

Lincoln also made a prima facie showing that it did not create the alleged dangerous condition or cause it to occur through a special use (see Ellman v. Village of Rhinebeck, 41 A.D.3d 635, 637, 838 N.Y.S.2d 641;  Landau v. Town of Ramapo, 207 A.D.2d 384, 615 N.Y.S.2d 705).  In opposition, the plaintiff failed to raise a triable issue of fact.

MASTRO, J.P., MALTESE, DUFFY and CONNOLLY, JJ., concur.