Smith v. 125th Street Gateway Ventures, LLC

75 A.D.3d 425, 903 N.Y.S.2d 231

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Karen S. Smith, J.), entered March 2, 2009, which, inter alia, granted the motion of defendant/third-party plaintiff 125th Street Gateway Ventures, LLC for summary judgment dismissing plaintiff’s complaint and all cross claims, unanimously affirmed, without costs.

Supreme Court properly dismissed plaintiffs complaint, since a city sign or signpost is not part of the “sidewalk” for purposes of section 7-210 of the Administrative Code of the City of New York, which imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517 [2008]; King v Alltom Props., Inc., 16 Misc 3d 1125[A], 2007 NY Slip Op 51570[U] [Kings County 2007]; Calise v Millennium Partners, 26 Misc 3d 1222[A], 2010 NY Slip Op 50208[U] [NY County 2010]).

Moreover, defendant established prima facie, through the deposition testimony of plaintiff, its own witness and the city witnesses, that it did not cause or create the metal protrusion from the sidewalk, nor did it participate in the repair and/or removal of same. Plaintiff offered only speculative evidence to the contrary. Concur—Mazzarelli, J.E, Renwick, Freedman, Richter and Abdus-Salaam, JJ.