GIANNIKAS v. CITY OF NEW YORK (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from two orders of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), both entered December 31, 2019.  The first order granted the defendant's motion for summary judgment dismissing the complaint.  The second order denied, as academic, the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the orders are affirmed, with one bill of costs.

The plaintiff commenced this action in 2018 against the City of New York, alleging that she was injured after she misstepped on the edge of a step that was too short and which was located immediately outside the front door of a public school building in Queens.  The City moved for summary judgment dismissing the complaint, and the plaintiff moved for summary judgment on the issue of liability.  In an order entered December 31, 2019, the Supreme Court granted the City's motion.  In a second order, also entered December 31, 2019, the court denied, as academic, the plaintiff's motion.  The plaintiff appeals.

The City established its prima facie entitlement to judgment as a matter of law by demonstrating that the injury occurred on public school premises, and that it does not operate, maintain, or control the school (see N.Y. City Charter § 521;  NY Education Law §§ 2551, 2554[4];  Dilligard v. City of New York, 170 A.D.3d 955, 957, 96 N.Y.S.3d 306;  Altreche v. City of New York, 122 A.D.3d 556, 556, 996 N.Y.S.2d 105).

In opposition, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff's contentions, the evidence she submitted in opposition to the City's motion did not establish that the City affirmatively created the alleged defect (see Myers v. City of New York, 64 A.D.3d 546, 547, 882 N.Y.S.2d 306).  Moreover, the plaintiff did not provide any evidence to suggest that the City retained control over the premises or retained a right to re-enter the premises and repair the area at issue, so as to impose liability upon it for any alleged violation of Administrative Code of the City of New York § 27–371(h) (cf.  Denermark v. 2857 W. 8th St. Assoc., 111 A.D.3d 660, 661, 974 N.Y.S.2d 533).

Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint and properly denied, as academic, the plaintiff's motion for summary judgment on the issue of liability.

DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.