The following papers numbered 1 to 15 were read on this motion by defendant, LIBERTY INSTALLATION SERVICES, LTD., for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all cross-claims against it:

Papers

Numbered

Notice of Motion-Affirmation-Affidavits-Exhibits......1 - 3

Plaintiff's Affirmation in Opposition-Exhibits........4 - 7

Defendant HAPPY ROCK's Affirmation in Opposition......8 - 10

Reply Affirmation-Exhibits...........................11 - 13

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This is an action for damages for personal injuries which were allegedly sustained by the plaintiff, RIASAT ALI, on August 9, 2009, at approximately 6:00 a.m. as a result of a trip and [*2]fall incident that occurred on a public sidewalk adjacent to the premises located at 60-01 31st Avenue, Woodside, New York. The complaint contains a second cause of action on behalf of SUDHA LAL for loss of consortium. The plaintiffs allege that the defendants, who are the owners and tenants of the premises, were negligent in permitting the sidewalk adjacent to and in front of 60-01 131st Street to become and remain in a dangerous, uneven, raised and unsafe condition. Plaintiff, a taxi driver, age 48, allegedly tripped on the sidewalk and suffered a fractured right arm.

This action was initiated by the filing of a summons and complaint on July 22, 2010. Issue was joined by service of UNITED'S answer with cross-claims dated September 13, 2010 and by service of LIBERTY'S answer with cross-claims dated September 16, 2010. Defendants HAPPYROCK and SEQUINS interposed an answer with cross-claims dated November 11, 2010. In their answer, defendant HAPPYROCK PARTNERS, LP and SEQUINS INTERNATIONAL admit that they are the owners of the building in question.

According to the plaintiffs' Bill of Particulars, RIASAT ALI asserts that he was walking past the premises on the public sidewalk in front of 60-01 31st Avenue in Woodside, when he was caused to trip and fall due to the defendants' negligence. As stated above, the plaintiff asserted that both UNITED and LIBERTY, who are tenants in the premises, were negligent in permitting the sidewalk to remain in an unsafe condition. In addition, the Bill of Particulars specifically states that no allegation of a violation of any statute, regulation, rule or ordinance is being asserted.

In support of the motion, counsel Matthew R. Litt, Esq., submits that the defendant, LIBERTY INSTALLATION SERVICES, INC., as a tenant, is not liable to a pedestrian for a defective sidewalk where the tenant did not repair the sidewalk, cause the defective condition, cause the defect to occur by some special use, or breached a specific ordinance or statute which obligated the owner or tenant to maintain the sidewalk. Counsel contends that Liberty, as the tenant of the building abutting the sidewalk, is not liable for the plaintiff's accident and states that LIBERTY did not negligently construct or repair the sidewalk, otherwise cause the defective condition, cause the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates owner to maintain the sidewalk.

Further, counsel states that New York City Administrative Code § 7-210, which requires the owner of real property to maintain the abutting sidewalk in a reasonably safe condition, is not applicable to LIBERTY as it was merely a tenant and not the owner of the property in question. Counsel states that the purpose of Administrative Code § 7-210 is to make it clear that the property owner is the party liable for a sidewalk trip and fall and that here there is no issue that LIBERTY was an owner of the premises. Counsel submits that the lease documents submitted clearly indicate that LIBERTY was a tenant. In addition, counsel states that there is no proof that LIBERTY created the sidewalk's flaw or that LIBERTY somehow made an existing flaw worse. The defendant also moves to dismiss the cross-claims of the co-defendants. In support of the motion counsel submits a copy of the pleadings, the plaintiffs' Bill of Particulars and the a sublease agreement dated August 26, 2005.

In opposition, the plaintiffs' counsel, Irving Gertel, Esq., states that the defendant's motion is defective as it fails to comply with CPLR 3212(b) which requires the pleadings to be annexed to the motion. Counsel states also that the original lease was not provided nor was there [*3]sufficient evidentiary proof submitted to support the motion for summary judgment other than an affidavit from LIBERTY's counsel.

Co-defendant HAPPYROCK PARTNERS, L.P. submitted an affirmation in opposition contending that the motion is premature in they have not had an opportunity to depose the plaintiff. Counsel contends that HAPPYROCK, the owner of the building, should be permitted to depose the plaintiff with respect to how the accident occurred. Counsel submits that essential facts to oppose this motion may exist which are in the exclusive control of another party.

An abutting property owner is not liable for injuries sustained by a pedestrian as a result of a defective condition of a public sidewalk unless the owner created the defective condition or caused it through some special use, or unless a statute charges the owner with the responsibility to repair and maintain the sidewalk and specifically imposes liability upon the owner for injuries resulting from a violation of the statute (see Biondi v. County of Nassau, 49 AD3d 580[2d Dept. 2008]; Solarte v DiPalmero, 262 AD2d 477 [2d Dept. 1999]).

The New York City Administrative Code §§ 19-152 and 7-210 places the duty to repair sidewalks upon the abutting property owners and § 7-210 specifically imposes liability upon owners of abutting property (except owner-occupied, purely residential premises of less than four families) for any injuries resulting from their breach of that duty.

Therefore, LIBERTY could only be liable to plaintiff if it were the owner of the property abutting the location of the accident or if it actually created the condition that caused plaintiff's injuries.

Here, LIBERTY only submitted an affirmation from its attorney stating that LIBERTY is not liable because it is a tenant in the premises and that LIBERTY did not create the defect. Although as a tenant, LIBERTY is not liable based upon the New York City Administrative Code § 7-210 which places the responsibility for maintaining the abutting sidewalk on the owner, under common law negligence LIBERTY could be liable for the defective sidewalk if it created or exacerbated the condition. Counsel however, although supplying his own affidavit, failed to submit an affidavit from a person with knowledge of the facts stating whether or not LIBERTY made any repairs to the sidewalk in question.

Thus, the defendant's motion for summary judgment is insufficient as it did not contain an affidavit by a person with knowledge of the facts (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. The motion shall be supported by an affidavit from a person with knowledge of the facts. Here, defendant merely supported its motion for summary judgment with an attorney's affirmation and the exhibits attached thereto. Inasmuch as defendant's attorney had no personal knowledge of the facts, his affidavit does not provide a factual basis for the relief sought. The exhibits submitted with counsel's affirmation also failed to establish prima facie that the defendant did not create the allegedly dangerous condition (see DiBartolomeo v. St. Peter's Hosp. of the City of Albany, 73 AD3d 1326 [3d Dept. 2010]).

Accordingly, as this court finds that LIBERTY failed to make a prima facie showing of [*4]entitlement to judgment as a matter of law, the motion for summary judgment dismissing the plaintiff's complaint and all cross-claims is denied.

Dated: June 6, 2011

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.