KRUZHKOV v. The Fathers of the Blessed Sacrament, Defendant,

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

Marlen KRUZHKOV, et al., Plaintiffs–Respondents, v. The EGLISE ST. JEAN BAPTISTE, et al., Defendants–Appellants–Respondents, The Fathers of the Blessed Sacrament, Defendant,

West New York Restoration of CT, Inc., Defendant–Respondent–Appellant. West New York Restoration of CT, Inc., Third–Party Plaintiff–Respondent–Appellant, v. The City of New York, Third–Party Defendant–Respondent.

8349

Decided: February 07, 2019

Acosta, P.J., Gische, Kapnick, Gesmer, Singh, JJ. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Jonathan D. Harwood of counsel), for appellants-respondents. Torino & Bernstein PC, Mineola (Thomas B. Hayn of counsel), for West New York Restoration of CT, Inc., respondent-appellant. Law Office of Stephen B. Kaufman, P.C., Bronx (John Decolator of counsel), for Marlen Kruzhkov and Shelby Kruzhkov, respondents. Zachary W. Carter, Corporation Counsel, New York (Mackenzie Fillow of counsel), for City of New York, respondent.

The complaint should be dismissed as against the Archdiocese, because the record demonstrates that the Archdiocese did not own, control or have any responsibility for the property abutting the pedestrian ramp on which plaintiff Marlen Kruzhkov allegedly slipped and fell (see Batts v. City of New York, 93 A.D.3d 425, 939 N.Y.S.2d 425 [1st Dept. 2012];  Administrative Code of City of N.Y. § 7–210).

However, summary judgment in favor of either Baptiste or West New York is precluded by issues of fact as to the cause of the icy condition on the ramp (see Ortiz v. City of New York, 103 A.D.3d 595, 962 N.Y.S.2d 77 [1st Dept. 2013];  see also Schnur v. City of New York, 298 A.D.2d 332, 750 N.Y.S.2d 267 [1st Dept. 2002] ).  While Baptiste and West New York had no duty to maintain the ramp, as the abutting landowner and the party that erected a sidewalk shed for Baptiste that extended over an area used by pedestrians, respectively, they had a nondelegable duty to construct and maintain the sidewalk shed in a safe manner (see Batts, 93 A.D.3d at 426, 939 N.Y.S.2d 425).  There is evidence that the construction of the sidewalk shed permitted water to drip onto the sidewalk and pedestrian ramp, freeze, and become a slipping hazard.  Moreover, Baptiste had a duty to keep the sidewalk abutting its property free of snow and ice (Administrative Code of City of N.Y. § 7–210).  There is an issue of fact as to whether evidence the snow removal efforts were insufficient to address the snow and ice condition or even exacerbated it (see Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 336–337, 781 N.Y.S.2d 110 [1st Dept. 2004] ).  Baptiste's indemnification claim against West New York is premature.

We have considered the parties' remaining contentions and find them unavailing.