Galeano v City of New York (2008 NY Slip Op 50920(U))

Galeano v City of New York

2008 NY Slip Op 50920(U) [19 Misc 3d 1127(A)]

Decided on May 1, 2008

Supreme Court, Kings County

Miller, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiff Ana Galeano ("Galeano"), a 89 year old woman who neither speaks nor reads English, brings suit in this slip and fall action against the landowner Beautiful View Realty Inc.,

("View Realty"), their tenant St. Peter's Spiritual Baptist Church #2 ("St. Peter's Church") and the City of New York ("City").

Plaintiffs alleges in her complaint and in her Notice of Claim that she was caused to trip and fall on a hole in the sidewalk in front of 1145 No strand Ave in Brooklyn, New York, a property admittedly owned by View Realty where at the time of the accident St.Peter's Church was the tenant.

View Realty now moves for summary judgment asserting that the deposition testimony of plaintiff Galeano establishes that plaintiff cannot identify where she fell. In addition, View Realty relies on the deposition testimony of plaintiff's daughter Luz Galeano, ( who did not witness the accident) who testified that the plaintiff told her that the accident took place at the building next store to 1145 Nostrand Ave in front of a property not owned by View Realty. View Realty argues that the daughter's deposition testimony may be relied upon on this motion for summary judgment as an exception to the hearsay rule as an admission.

View Realty acknowledges that the plaintiff also advised her daughter and that the daughter so testified that the hole that caused the accident was near a cellar door placing the [*2]accident site in front of View Realty's property.

It is axiomatic that a moving party on a motion for summary judgment has the burden of establishing it's entitlement to summary judgment. (Tessier v New York City Health and Hospitals Corporation, 177 AD2d 626 [2d Dept 1991], Ciccone v Bedford Center School Dist., 21 AD3d 437 [2d Dept 2004].) The Court has reviewed View Realty's submission and the transcripts of plaintiff and her daughter's deposition. From the Court's review, it is clear that there are triable issues of fact that preclude granting View Realty's motion for summary judgment.

Plaintiff's testimony was confused and contradictory. It is clear that this 89 year old woman who speaks and reads no English was having tremendous difficulty understanding questions. Moreover, View Realty's attempt to "cherry pick" the daughter's testimony when it supports its position and discount other portions as inadmissible hearsay when it defeats its position, would not advance the interests of justice. Moreover, assuming arguendo, that the daughter's testimony were to be admitted as an admission, the Court would be permitted to consider other testimony from the same deponent where it obviates the admission. (People v Dlugash, 41 NY2d 725 [1977] ). This would create triable issues of fact as to location of the accident.

There is no need to review plaintiffs' submission as the Court has determined that the movant has failed to meet its burden on this summary judgment motion (Washington v Community Mutual Savings Bank, 308 AD2d 444 [2d Dept 2003], Tessler v New York City Health and Hospitals Corporation, 177 AD2d 576 [2d Dept 1991], Wingrad v. New York University Medical Center, 64 NY2d 851 [1985]). However, the Court notes that plaintiff and her daughter have submitted affidavits setting forth the location of the accident. In addition, the Notice of Claim verified by plaintiff also sets the location of the accident as 1145 Nostrand Ave.

With respect to View Realty's argument that it has no obligation to maintain the sidewalk in front of its property in this pre New Sidewalk law case under § 7-201(1) of the Administrative Code of the City of New York, and thus should be granted summary judgment, the Court finds from its review of the papers and especially the photographs provided which show a hole near the cellar door leading to the premises, that there are triable issues of fact as to whether this defective condition was caused by this allegedly special use. (Zuckerman v City of New York, 49 NY2d 557 [1980], Dyckman v Barrett, 187 AD2d 553 [2d Dept 1992]., Elzer v Nassau County, 111 AD2d 212 [2d Dept 1985].

Accordingly, the motion for summary judgment of View Realty is denied in its entirety.

The Court now turns its attention to the City's cross motion for summary judgment which is based on Section 7-201(c)(2) of the Administrative Code of the City of New York, effective June 4, 1980 which reads in pertinent part :

The City submits the deposition testimony of a Department of Transportation employee who testified that a search revealed no record of any contracts, applications for permits, permits, violations, complaints or repair records for the accident site. In addition, the City submitted the Big Apple Pothole and Sidewalk Protection Corporation map for the relevant time period which reveled no defect markings at the accident site at 1145 Nostrand Ave or at 1143 Nostrand Ave, the other possible site of the accident as alleged by View Realty.

The City has met its burden and established its entitlement to summary judgment and the burden shifts to plaintiff to submit admissible evidence to raise triable issues. (Zuckerman v City of New York, 49 NY2d 557 [1980], Gong v Gjoni, 294 AD2d 648 [3d Dept 2002].)

Plaintiff has failed to do so. It offers no evidence that it gave notice to the City of the alleged defect. It simply argues that the issue of what the Big Apple Map demonstrates is a jury question. The Court has reviewed the Map and finds, using the Map's own key code, that it does not indicate any defects.

Accordingly, the motion of the City for summary judgment is granted and the Clerk of the Court is directed to enter judgment dismissing the complaint and all cross claims against the defendant City of New York with prejudice.