Upon the foregoing papers, the motions are decided as indicated herein.

Defendant Number One Chinese Kitchen moves, and co-defendants Anita Corrado and the City of New York cross-move, by respective notices of motion, for summary judgment and/or dismissal of the complaint and all crossclaims asserted against each. Plaintiff Mary K. Boudreau

opposes all three motions.

This action devolves from a trip-and-fall on the sidewalk in front of 175 Main Street on Staten Island, wherein plaintiff claims to have been personally injured. On the date of the accident, the adjacent building was owned (along with nonparty George Corrado) by defendant Anita Corrado (hereafter, "Corrado") and leased, in part, by a business operating under the name of Number One Chinese Kitchen (hereafter, "NOK"). Plaintiff commenced this action against the City of New York (hereafter, the "City") by the filing and service of a summons with complaint on or about August 27, 2003. A notice of claim had been filed on November 14, 2002. Thereafter, on or about October 3, 2003 plaintiff served a supplemental summons and complaint which added Corrado and NOK as co-defendants. Issue was joined by service of an answer with crossclaims by the City on or about October 2, 2003, and co-defendants Corrado and NOK on or about December 16, 2005.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v. Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). To prevail on the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562). In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue (id. at 562). Thus, summary judgment, which operates to deprive a party of his or her day in court, is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (Persaud v. Darbeau, 13 AD3d 347).

In support of its motion for summary judgment, defendant NOK relies upon the affidavit and deposition testimony of Chi Chuen Poon (a principal of NOK), as well as the deposition testimony of (1) plaintiff (2) George Corrado (the husband of Anita Corrado), (3) Abraham Lopez (a representative of the City) and (4) non-party witness Danny Poon (an employee of NOK). Also [*2]submitted is a copy of NOK's lease agreement with Corrado. Defendant Corrado adopts the arguments of NOK in support of her cross motion.

In sum and substance, the foregoing evidence supports the claim that neither Corrado nor NOK had performed any repairs or maintenance on the City-owned sidewalk abutting the premises, but that the City had performed renovation and/or replacement work thereon within the months

preceding plaintiff's accident. It is uncontrovertible that its lease with Corrado required NOK to keep the sidewalk free from snow and ice, but imposed no duty on the lessee to repair or maintain the sidewalk in front of its store. In addition, a record searcher in the office of litigation services for the Department of Transportation (Abraham Lopez) was unable to produce evidence that either NOK or Corrado undertook to repair or maintain the sidewalk in question.

Based upon these submissions, the Court is of the opinion that both NOK and Corrado have establishedtheir prima facie entitlement to summary judgment. Thus, it became incumbent upon the plaintiff and any cross-claiming defendants to create a triable issue of fact as to the liability of either of these defendants or suffer the dismissal of the causes of action against them. In this regard, the Court notes that the accident occurred on August 28, 2002, i.e., prior to the effective date (September 14, 2003) of the amendment of the New York City Administrative Code imposing responsibility for the maintenance and repair of abutting sidewalks on the owners of most commercial properties. Since the City has offered no opposition to either of these motions, its cross claims, if any, against either co-defendant must be dismissed.

In opposition, plaintiff has submitted an attorney's affirmation exerpting a few select lines of deposition testimony which establish that NOK had employed hand trucks to traverse the sidewalk in question to bring soda into the restaurant, thereby attempting to impose liability on NOK for maintaining a special use. As to defendant Corrado, plaintiff again relies upon a few select lines from the deposition testimony of Chi Chuen Poon and Danny Poon to establish that Corrado had been informed about the sidewalk defects, and had been asked to repair same.

In the absence of any competent evidence of a duty on the part of either Corrado or NOK to maintain or repair the sidewalk in question, or evidence supporting an inference that either defendant created the alleged defect through, e.g., a special use, this Court is of the opinion that the complaint as against these defendants must be severed and dismissed Next, the Court will consider the City's cross motion for summary judgment and/or dismissal of the complaint.

In support of the City's motion pursuant to CPLR 3212 and/or 3211 (a)(7) to dismiss the complaint, it is claimed that plaintiff did not comply with the prior written notice requirement of §7-201 ( c) (2) of the Administrative Code of the City of New York. Further, it is alleged that plaintiff cannot demonstrate that any affirmative negligence by the city was responsible for her accident.

When reviewing a motion to dismiss the complaint for failure to state a cause of action, the Court "must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (see Widman v. Rosenthal, 40 AD3d 749 [citations and internal quotation marks omitted]).

As is relevant, §7-201( c)(2) of the Administrative Code of the City of New York provides that:

No civil action shall be maintained against the City for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous, or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous, or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the City of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe (emphasis added).

On its cross motion, the City relies upon the deposition testimony of the plaintiff and its records searcher, Abraham Lopez, as well as a Big Apple Map dated February 22, 2002. In essence, the City alleges that plaintiff's purported inability to describe the condition which caused her to fall precludes her from proving compliance with the prior written notice requirement, thereby demonstrating a prima facie case for dismissal. In addition, the City relies upon the deposition testimony of Abraham Lopez to the effect that a search for the two years prior to plaintiff's fall failed to disclose any applications, permits, repair orders, contracts, milling and resurfacing records or complaints, thereby establishing prima facie evidence that it performed no repairs to the sidewalk where plaintiff allegedly fell. Finally, the City alleges that the most recent Big Apple Map prior to the date of plaintiff's accident does not provide sufficient notice of any defect in the proximity of plaintiff's fall, and that the recognized exceptions to this condition precedent are inapplicable herein.

In opposition, plaintiff alleges that the Big Apple Map attached to the City's moving papers provides undisputed evidence that the City was given prior written notice of the area of broken concrete which caused her to fall (plaintiff's EBT dated July 20, 2006, p 18).

It is well settled that the City's duty of care regarding municipal sidewalks and streets extends, with limited exceptions, only to those defects which its officials have been actually notified exist at a specified location (see generally Poirier v. City of Schenectady, 85 NY2d 310). Moreover, Administrative Code §7-201( c) (2) specifically provides that prior written notice of a street or sidewalk defect is a condition precedent to the maintenance of any trip-and-fall action against the City (see Katz v. City of New York, 87 NY2d 241, 243). Here, the complaint is otherwise sufficient to state a cause of action against the City (see Widman v. Rosenthal, 40 AD3d at 749), and while a dispute may exist as to whether the defect identified by plaintiff as the cause of her accident is denoted on the Big Apple Map, this merely presents a question of fact for a jury to resolve (see

Bradley v. City of New York, 38 AD3d 581, 582). In addition, it is familiar law that no notice is required when an affirmative act of negligence on the part of the City causes or creates a dangerous or defective condition (see Tumminia v. Cruz Constr Corp., 41 AD3d 585, 586). Thus, since there is EBT testimony that some months time prior to the date of plaintiff's accident, the City performed [*3]repairs to the sidewalk in question, further issues of fact exist as to whether, e.g., the defect, if any, was caused by the city's repair and existed immediately after their work was completed (Scavuzzo v. City of New York, 47 AD3d 793).

Accordingly, it is

ORDERED that the motion and cross motion (Nos. 3237 and 3677) for summary judgment dismissing the complaint and all cross claims against defendants Number One Chinese Kitchen and Anita Corrado are granted, and said causes of action are hereby severed and dismissed; and it is further

ORDERED that so much of the cross motion (No. 239) by defendant the City of New York as seeks the dismissal of any cross claims asserted against it is denied as academic; and it is further

ORDERED that the balance of the City's cross motion is denied; and it is further

ORDERED that the caption is hereby amended to reflect the dismissals on behalf of defendants Number One Chinese Kitchen and Anita Corrado; and it is further

ORDERED that the Clerk of the Court enter judgment in accordance herewith.

The foregoing constitutes the Decision and Order of the Court.

DATED: MAY 12, 2008/s/

Hon. Thomas P. Aliotta, J.S.C.