Esteva v. City of New York

Appellate Division of the Supreme Court of New York

Esteva v. City of New York

30 A.D.3d 212, 817 N.Y.S.2d 22

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 13, 2006

StatusPublished

Cited by1 cases

This text of 30 A.D.3d 212 (Esteva v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Esteva v. City of New York, 30 A.D.3d 212, 817 N.Y.S.2d 22 (N.Y. Ct. App. 2006).

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Opinion

[213]*213Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered August 26, 2005, which, to the extent appealed from, denied the motion for summary judgment dismissing the complaint and all cross claims as against defendant Catsimatidis, unanimously affirmed, without costs.

Plaintiff was allegedly injured in a trip and fall near a bus shelter. Catsimatidis, an abutting landowner, denied any obligation to maintain the public sidewalk. Denial of an earlier dismissal motion was followed by discovery, after which Catsimatidis made the instant motion, relying primarily on excerpts from the deposition testimony of Ah Sadriyoun, the Chief of Operations of the Department of Transportation’s Sidewalk Management Unit.

It is well settled that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Catsimatidis failed to satisfy that burden. His offer of selective excerpts of Sadriyoun’s deposition testimony to the effect that because the City does not generally place such a bus shelter on private property, the sidewalk surrounding this structure could not be Catsimatidis’s responsibility, was, as to this case, speculative. Indeed, the witness admitted he had not consulted “any metes and bounds description or any survey of the property.” Moreover, since the transcript offered by Catsimatidis omitted much of Sadriyoun’s testimony, it is difficult to ascertain exactly what the witness was discussing. Catsimatidis did not produce an affidavit from an individual with expertise or personal knowledge of the facts who was in a position to interpret various documents appended to the motion papers and connect them to plaintiffs accident. It cannot be found, on this record, that Catsimatidis neither owned nor controlled the area where plaintiff fell (see Wright v C.H. Martin of White Plains Rd., Inc., 23 AD3d 295 [2005]). Concur— Tom, J.E, Friedman, Sullivan and McGuire, JJ.

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[213]*213Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered August 26, 2005, which, to the extent appealed from, denied the motion for summary judgment dismissing the complaint and all cross claims as against defendant Catsimatidis, unanimously affirmed, without costs.

Plaintiff was allegedly injured in a trip and fall near a bus shelter. Catsimatidis, an abutting landowner, denied any obligation to maintain the public sidewalk. Denial of an earlier dismissal motion was followed by discovery, after which Catsimatidis made the instant motion, relying primarily on excerpts from the deposition testimony of Ah Sadriyoun, the Chief of Operations of the Department of Transportation’s Sidewalk Management Unit.

It is well settled that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Catsimatidis failed to satisfy that burden. His offer of selective excerpts of Sadriyoun’s deposition testimony to the effect that because the City does not generally place such a bus shelter on private property, the sidewalk surrounding this structure could not be Catsimatidis’s responsibility, was, as to this case, speculative. Indeed, the witness admitted he had not consulted “any metes and bounds description or any survey of the property.” Moreover, since the transcript offered by Catsimatidis omitted much of Sadriyoun’s testimony, it is difficult to ascertain exactly what the witness was discussing. Catsimatidis did not produce an affidavit from an individual with expertise or personal knowledge of the facts who was in a position to interpret various documents appended to the motion papers and connect them to plaintiffs accident. It cannot be found, on this record, that Catsimatidis neither owned nor controlled the area where plaintiff fell (see Wright v C.H. Martin of White Plains Rd., Inc., 23 AD3d 295 [2005]). Concur— Tom, J.E, Friedman, Sullivan and McGuire, JJ.

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Bluebook (online)

30 A.D.3d 212, 817 N.Y.S.2d 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esteva-v-city-of-new-york-nyappdiv-2006.

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