Kerner v. City of New York

Opinion

Kerner v City of New York

2026 NY Slip Op 05013

August 19, 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.

Michele Kerner, appellant,

v

City of New York, et al., respondents.

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

Decided on August 19, 2026

2024-13079, (Index No. 517058/20)

Angela G. Iannacci, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Gabriel Law Firm, P.C., Rockville Centre, NY (Dennis Futoryan and Jeffrey Bloomfield of counsel), for appellant.

Steven Banks, Corporation Counsel, New York, NY (Jeremy W. Shweder and Janet L. Zaleon of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias-Colón, J.), dated October 29, 2024. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this personal injury action against the defendants, City of New York and New York City Department of Transportation (hereinafter the DOT), alleging that she tripped on a metal sidewalk grate and sustained injuries. The defendants moved for summary judgment dismissing the complaint, arguing that a private utility company owned and was responsible for the sidewalk grate. In an order dated October 29, 2024, the Supreme Court granted the defendants' motion. The plaintiff appeals.

"Section 7-210 of the Administrative Code of the City of New York generally imposes liability for injuries resulting from negligent sidewalk maintenance on the abutting property owners" (Flynn v City of New York, 84 AD3d 1018, 1019; see Alexander v City of New York, 118 AD3d 646, 647). However, "Rules of City of New York Department of Transportation (34 RCNY) § 2-07 (b) provides that owners of covers or gratings on a street, which includes the sidewalk, are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding surface" (Nyack v City of New York, 153 AD3d 1266, 1266; see Saez v Sapir Realty Mgt. Corp., 185 AD3d 456, 457).

Here, the defendants failed to eliminate all triable issues of fact as to whether the City or the utility company owned the sidewalk grate (see Saez v Sapir Realty Mgt. Corp., 185 AD3d at 457; Roman v Bob's Discount Furniture of NY, LLC, 116 AD3d 940, 941). The defendants submitted an affirmation of Mildred McKnight-Gibson, an employee of the DOT, in support of their contention that the utility company owned the sidewalk grate. However, the affirmation was conclusory and lacked a proper foundation. McKnight-Gibson affirmed that she inspected the [*2]sidewalk grate more than 17 months after the alleged incident, and she failed to set forth any specific details regarding the process she used to inspect the sidewalk grate, failed to offer any specific observations regarding the sidewalk grate, and failed to otherwise set forth a factual basis for the conclusion that the utility company owned the sidewalk grate at the time of the plaintiff's accident (see Colon v 385 Fifth Ave., LLC, 188 AD3d 486, 487; Burch v Village of Hempstead, 139 AD3d 778, 778).

We decline to reach the defendants' contention that they lacked prior written notice of the alleged sidewalk defect, as it is improperly raised for the first time on appeal and does not present "a pure question of law appearing on the face of the record which could not have been avoided by factual showings or legal countersteps if raised at the proper juncture" (Wells Fargo Bank v Islam, 174 AD3d 670, 672).

Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law, and the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court