RUBIN v. 230

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Supreme Court, Appellate Division, First Department, New York.

Paula RUBIN, Plaintiff-Respondent, v. CITY OF NEW YORK, Defendant-Respondent, Atlantic Scaffold Inc., et al., Defendants, 230 Park Avenue Associates, Defendant-Appellant.

Decided: February 23, 1999

ELLERIN, J.P., NARDELLI, WILLIAMS and ANDRIAS, JJ. Jay L.T. Breakstone, for plaintiff-respondent. Elizabeth I. Freedman, for defendant-respondent. Carol A. Moore, for defendant-appellant.

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about September 4, 1997, which denied the cross-motion of defendant 230 Park Avenue Associates for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the cross-motion granted and the complaint dismissed as to defendant 230 Park Avenue Associates.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

Where plaintiff tripped and fell on a broken piece of sidewalk located on the curbside at the southeast corner of Park Avenue and East 46th Street, which sidewalk abutted 230 Park Avenue and its Helmsley Walk East passageway, plaintiff has failed to submit any evidence tending to suggest that 230 Park put the site of the accident to a special use, how the alleged hazard was created, or how 230 Park Avenue may have been involved in the creation of such defect.   The photographic evidence shows that the area where plaintiff fell was immediately adjacent to the curbline whereas Helmsley Walk East begins at the building line.   While the passageway may have been constructed for the benefit of 230 Park Avenue, the evidence discloses that plaintiff did not sustain her injuries at that location and there is no indication in the record that 230 Park Avenue used the area of sidewalk where she fell for a purpose different from that of the general populace such that a duty to maintain and liability could be imputed to this defendant (see, Otero v. City of New York, 213 A.D.2d 339, 340, 624 N.Y.S.2d 157).

In support of its motion, defendant produced the deposition testimony of the Assistant Director of Helmsley-Noyes attesting that at least five years prior to the accident he was aware that the sidewalk where plaintiff fell was cracked;  that he was unaware whether the City was notified of any sidewalk defects;  and, that to his knowledge, in the years prior to the accident, neither 230 Park Avenue nor Helmsley-Noyes had ever made any repairs to the sidewalk at or near where plaintiff fell.   This was a sufficient showing entitling 230 Park Avenue to summary judgment (see, Aylon v. City of New York, 256 A.D.2d 68, 681 N.Y.S.2d 258).   Plaintiff has not submitted any evidence tending to suggest that 230 Park Avenue may have been involved in maintaining the scene of the accident and any claim that it was is nothing more than a conclusory allegation which is insufficient to defeat a motion for summary judgment.


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