Cruz v. 2742 Fulton, LLC

Opinion

Cruz v 2742 Fulton, LLC

2026 NY Slip Op 05275

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Merli Cruz, appellant,

v

2742 Fulton, LLC, et al., defendants, Citywide Builders Group, Inc., respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-06797, (Index No. 509079/20)

Cheryl E. Chambers, J.P.

Deborah A. Dowling

Lillian Wan

Lourdes M. Ventura, JJ.

Wingate Russotti Shapiro Moses & Halperin, LLP (The Law Office of Michael James Prisco PLLC, Massapequa, NY, of counsel), for appellant.

Linton Robinson & Higgins, LLP, New York, NY (Anna A. Higgins of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated March 20, 2024. The order, insofar as appealed from, granted that branch of the motion of the defendant Citywide Builders Group, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

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

In September 2019, the plaintiff allegedly sustained injuries when he tripped and fell on a hole in a public sidewalk abutting a vacant property that was owned by the defendant 2742 Fulton, LLC. At the time of the plaintiff's accident, the property was being used by the defendant Citywide Builders Group, Inc. (hereinafter Citywide), as a storage area for a construction project on a neighboring property for which Citywide was the general contractor. The plaintiff commenced this action against, among others, Citywide to recover damages for injuries he allegedly sustained in connection with the accident. After the completion of discovery, Citywide moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In an order dated March 20, 2024, the Supreme Court, among other things, granted that branch of Citywide's motion. The plaintiff appeals.

"Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property" (Smith v 4 Empire Mgt. Group, Inc., 208 AD3d 811, 812 [internal quotation marks omitted]). While "[l]iability for injuries sustained as a result of a dangerous condition on a public sidewalk is generally placed on the municipality and not on the owner of the abutting land" (Radutskiy v Neck Rd. One Realty, LLC, 239 AD3d 902, 904 [internal quotation marks omitted]), "7-210 of the Administrative Code of the City of New York shifts 'tort liability for injuries resulting from defective sidewalks from the City to abutting property owners'" (Ramharakh v Nembhard, 241 AD3d 1370, 1371, quoting Giuntini v City of New York, 226 AD3d 651, 652). "In the absence of ownership, occupancy, control, or special use, a party generally cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Smith v 4 Empire Mgt. Group, Inc., 208 AD3d at 812 [internal quotation marks omitted]).

Here, the evidentiary material submitted by Citywide in support of its motion established, prima facie, that it owed no duty to maintain the sidewalk upon which the plaintiff fell. Citywide demonstrated that it did not own the property abutting the sidewalk upon which the plaintiff fell and that the hole in the sidewalk existed before Citywide began work on the neighboring property. Citywide also established, prima facie, that it did not cause the condition to occur via a special use (see Byrams v Hamilton, 234 AD3d 917, 918-919; Smith v 4 Empire Mgt. Group, Inc., 208 AD3d at 812). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of Citywide's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

CHAMBERS, J.P., DOWLING, WAN and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court