Lewis v. City of New York

Appellate Division of the Supreme Court of New York

Lewis v. City of New York

89 A.D.3d 410, 931 N.Y.2d 855

Appellate Division of the Supreme Court of the State of New York·Decided November 1, 2011·Published·Cited by 11 cases

Opinion

Defendants-appellants made a prima facie showing of entitle-[411] merit to judgment as a matter of law with evidence that they did not have the “ability to exercise control” over the sidewalk defect that allegedly caused plaintiffs fall (Kaufman v Silver, 90 NY2d 204, 207 [1997]; Hurley v Related Mgt. Co., 74 AD3d 648, 649 [2010]).

In opposition, plaintiff and Con Edison failed to raise an issue of fact. As the undisputed owner of the subject grate, Con Edison had exclusive maintenance responsibility over the grate and the area extending 12 inches outward from the perimeter of the grate (34 RCNY 2-07 [b] [1], [2]), which included the alleged sidewalk defect that caused plaintiffs fall. Accordingly, only Con Edison, and not defendants-appellants, may be liable for plaintiffs injuries (see Storper v Kobe Club, 76 AD3d 426, 427 [2010]; Hurley, 74 AD3d at 649). Concur — Gonzalez, EJ., Tom, Sweeny and Renwick, JJ. [Prior Case History: 2010 NY Slip Op 31367(11).]

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Defendants-appellants made a prima facie showing of entitle-[411] merit to judgment as a matter of law with evidence that they did not have the “ability to exercise control” over the sidewalk defect that allegedly caused plaintiffs fall (Kaufman v Silver, 90 NY2d 204, 207 [1997]; Hurley v Related Mgt. Co., 74 AD3d 648, 649 [2010]).

In opposition, plaintiff and Con Edison failed to raise an issue of fact. As the undisputed owner of the subject grate, Con Edison had exclusive maintenance responsibility over the grate and the area extending 12 inches outward from the perimeter of the grate (34 RCNY 2-07 [b] [1], [2]), which included the alleged sidewalk defect that caused plaintiffs fall. Accordingly, only Con Edison, and not defendants-appellants, may be liable for plaintiffs injuries (see Storper v Kobe Club, 76 AD3d 426, 427 [2010]; Hurley, 74 AD3d at 649). Concur — Gonzalez, EJ., Tom, Sweeny and Renwick, JJ. [Prior Case History: 2010 NY Slip Op 31367(11).]

Lewis v. City of New York, 89 A.D.3d 410, 931 N.Y.2d 855 (N.Y. Ct. App. 2011).

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89 A.D.3d 410 (Lewis v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.