BETANCES v. 700 WEST 176TH ST REALTY CORP

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

Yomara BETANCES, Plaintiff-Appellant, v. 700 WEST 176TH ST. REALTY CORP., et al., Defendants-Respondents.

Rafael AYRA, Individually and Doing Business as Fayra Enterprise, Third-Party Plaintiff-Respondent, v. The CITY OF NEW YORK, Third-Party Defendant.

Decided: May 21, 1998

Before ROSENBERGER, J.P., and WALLACH, TOM and SAXE, JJ. Linda A. Goldman, for Plaintiff-Appellant. Steven R. Harris, Marcy Sonneborn, for Defendants-Respondents. Marcy Sonneborn, for Third-Party Plaintiff-Respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered May 20, 1997, which, in an action by plaintiff for injuries sustained when she tripped over a hole in the sidewalk abutting premises leased, owned and managed by defendants, granted the respective motions for summary judgment by the lessee and by the owner and manager, unanimously affirmed, without costs.

 We agree with the motion court that plaintiff failed to adduce any evidence tending to show that her path was directed toward the hole in the sidewalk because of the clothing rack allegedly placed on the sidewalk by defendant lessee, and that her claim based on a special use of the sidewalk is therefore without merit (compare, Curtis v. City of New York, 179 A.D.2d 432, 577 N.Y.S.2d 855, lv. denied 80 N.Y.2d 753, 587 N.Y.S.2d 905, 600 N.E.2d 632, with MacLeod v. Pete's Tavern, 87 N.Y.2d 912, 640 N.Y.S.2d 864, 663 N.E.2d 905).   We also agree with the motion court that plaintiff failed to adduce evidence sufficient to raise an issue of fact as to whether defendants ever undertook to repair the alleged hole, and that her claim for negligent repair is therefore without merit (see, Palazzo v. City of New Rochelle, 236 A.D.2d 528, 529, 654 N.Y.S.2d 612;  Carbone v. Pathrose, 236 A.D.2d 352).

MEMORANDUM DECISION.