Leary v. Dallas BBQ

91 A.D.3d 519, 936 N.Y.2d 541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2012
• Status: Published

Opinion

The motion court properly granted Dallas BBQ’s summary judgment motion in this action for personal injuries allegedly sustained after plaintiff tripped and fell over a segment of a wooden police barricade lying on the sidewalk near the northwest intersection of 23rd Street and Eighth Avenue in Manhattan. Dallas BBQ, lessee of the premises near the intersection, established, prima facie, its entitlement to summary judgment. It was neither abutting owner for purposes of Administrative Code of City of NY § 7-210 nor did it create or have constructive notice of the condition, and it owed no duty to plaintiff for the maintenance of the abutting sidewalk under the alleged circumstances (see Collado v Cruz, 81 AD3d 542 [2011]; Berkowitz v Dayton Constr., 2 AD3d 764, 765 [2003]). In opposition, plaintiff failed to raise a triable issue of fact as to any theory of duty on the part of Dallas BBQ. Concur — Andrias, J.E, Sweeny, Moskowitz, Renwick and Freedman, JJ. [Prior Case History: 2011 NY Slip Op 30195(17).]