In this action, plaintiff alleges that, on October 9, 2007, she tripped and fell on sidewalk [*2]grates in front of premises located at 1359 Broadway, between West 36th and West 37th Street in Manhattan. At her deposition, plaintiff testified that a photograph marked as a defendant's exhibit was a picture of the location of her accident that she had taken after the accident. When that photograph was later shown to an employee of defendant New York City Transit Authority at his deposition, he recognized the grates as gratings that covered vent bays used for ventilation of the subway.

Defendants Marlboro Building Associates LLC (sued herein as Marlborough Building Associates LLC) and Empire State Building Company LLC (sued herein as Empire State Building Co. LLC) move for summary judgment dismissing the complaint and all cross claims as against them. (Motion Seq No. 004.) Defendant Malatesta Paladino, Inc. also moves for summary judgment dismissing the complaint and all cross claims as against it. (Motion Seq. No. 005.) Lastly, the City of New York separately moves for summary judgment in its favor as well. (Motion Seq. No. 006.) This decision address all three motions.

The standards of summary judgment are well settled.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action."

Plaintiff was deposed on September 24, 2010. (Griffin Affirm., Ex E [Appel EBT].) According to plaintiff, on October 9, 2007, she was traveling north from 34th Street to 36th Street on Broadway. (Id. at 17.) She testified, "I was walking on the grate, and I tripped and fell on the grate." (Id. at 19.) According to plaintiff, an unevenness in the grate caused her to fall. (Id. at 22.) Plaintiff testified that the location of her accident "was on Broadway between 36th and 37th. It was on the west side of the street and I was going from the south to the north, from 36th to 37th." (Id. at 10.)

At her deposition, plaintiff was shown an exhibit marked as "Defendant's Exhibit B" and asked, "Is this a picture of the location of your accident?" (Appel EBT, at 34.) Plaintiff answered, "Yes, ma'am." (Id.) Plaintiff testified that she took the picture marked as Defendant's Exhibit B. (Id.) On this motion, Marlboro Building Associates, LLC and Empire State Building Company LLC submit a black and white copy of the photograph that was purportedly marked as Defendant's Exhibit B at plaintiff's deposition. (Griffin Affirm., Ex G.) Malatesta Paladino, Inc. and the City submit similar black and white copies. (Donahue Affirm., Ex I; Colt Affirm., Ex E.)

Vincent Moschello, employed by defendant New York City Transit Authority as a structural maintainer in the department of Station Maintenance Manhattan, was deposed on December 2, 2010. (Griffin Affirm., Ex L [Moschello EBT]) At his deposition, he was shown "what was previously marked as Defendant's Exhibit B of 9/14/2010" and asked, "Do you know what is depicted in that [*3]picture?" Moschello answered, "We can tell from this picture it is a vent bay and a vent bay grating." (Id. at 12.) According to Moschello, "The gratings are the top section that covers the vault, and the vault and shaft are the actual vent bay. They are used for ventilation purposes." (Id.) He further testified, "As far as I know, the City owns them. We maintain them. The Transit Authority maintains them." (Moschello EBT, at 12.)

Marlboro Building Associates LLC and Empire State Building Company LLC have established prima facie entitlement to summary judgment dismissing the complaint and any cross complaints as against them as a matter of law. The Rules of the New York City Department of Transportation (34 RCNY) § 2-07 state, in pertinent part: "The owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware." (34 RCNY 2-07 [b] [1].) Citing 34 RCNY 2-07 (b) (1), courts have held "[Section] 7-210 of the Administrative Code of the City of New York does not impose liability upon a property owner for failure to maintain a sidewalk grate in a reasonably safe condition." (Hurley v Related Mgt. Co., 74 AD3d 648, 649 [1st Dept 2010]; see also Cruz v New York City Tr. Auth., 19 AD3d 130, 131 [1st Dept 2005].)

Here, Moschello testified that at his deposition that the City owned the vent bay grating at issue. The City does not dispute this contention, but argues instead that it has no liability because it is an out-of-possession lessor, because "all Transit facilities and property incidental to or necessary for the operation such transit facilities are leased to the Transit Authority from the City." pursuant to a 1953 lease agreement between the City and the New York City Transit Authority. (See Colt Affirm. ¶¶ 9-11; Colt Affirm., Ex H.)

Given Moschello's testimony, which the City did not dispute, Marlboro Building Associates LLC and Empire State Building Company LLC have demonstrated that they, as the alleged abutting property owners, had no duty to maintain the sidewalk grating at issue, either under Administrative Code § 7-210 or 34 RCNY 2-07.

Plaintiff fails to raise a triable issue of fact warranting denial of their motion for summary judgment. Plaintiff conclusorily asserts that Marlboro Building Associates LLC and Empire State Building Company LLC failed to maintain the sidewalk around the grating, which caused the grating to become loose, raised, and uneven. (Vargas Opp. Affirm. ¶ 13.) First, 34 RCNY 2-07 (b) (1) requires the owner of the grating to maintain "the area extending twelve inches outward from the perimeter of the hardware," which is not an area within the responsibility of the abutting property owner to maintain. (See Hurley, 74 AD3d 648, supra.) Second, plaintiff does not submit the affidavit of an expert opining that the alleged condition of the sidewalk that is twelve inches beyond the grating could have caused the grating to become loose, raised, and uneven.

Plaintiff also argues that Marlboro Building Associates LLC and Empire State Building Company LLC failed to meet their burden of proof because the witness produced for a deposition, Richard Hesson, could not definitively state whether a sidewalk construction project begun prior to plaintiff's accident involved work on the grating. Hesson, a superintendent for 1359 Broadway employed by the managing agents for the premises, testified at his deposition that he recalled work being done on the sidewalk in 2007 in front of 1359 Broadway, specifically concrete work done by Malatesta Paladino (Vargas Opp. Affirm. dated Sep. 13, 2011, Ex D [Hesson EBT], at 11-12.) John Novello, a supervisor employed by defendant Malatesta Paladino, Inc., testified at his EBT that Malatesta Paladino did the sidewalk repair, which took place in approximately October 2007. [*4](Vargas Opp. Affirm. dated Sep. 19, 2011, Ex D [Novello EBT], at 9.) According to Novello, the work involved "Demolition of the existing sidewalk and structure below it and we put in new steel beams, new waterproofing and new concrete." (Id.)

Hesson was asked at his deposition if he ever noticed the grates were being worked on or if any part of the project involved the grates. He answered,

"To my understanding, the grates were not part of the sidewalk project even though they were on the sidewalk. That was the MTA."

Q. You never actually saw any work being done on the grates?

A. I only saw when they were replaced.

Q. Who replaced the grates?

A. The MTA replaced them."

Contrary to plaintiff's argument, Marlboro Building Associates LLC and Empire State Building Company LLC did not have to specifically disprove that the sidewalk project could not have possibly involved work on the gratings to obtain summary judgment. (Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009].) "Our jurisprudence does not require a defendant [moving for summary judgment] to prove a negative on an issue as to which [it] does not bear the burden of proof.'" (Martinez v Hunts Point Co-op. Market, Inc., 79 AD3d 569, 570 [1st Dept 2010].) The Court also points out that in Novello's affidavit, which was submitted in support of Malatesta Paladino's own motion for summary judgment, Novello avers, ""Malatesta Paladino's work did not include any maintenance, repair or replacement of the grates or an approximately fourteen inch perimeter around those grates." (Donahue Affirm., Ex H [Novello Aff.] ¶ 3.)

Therefore, the motion for summary judgment by defendants Marlboro Building Associates LLC (sued herein as Marlborough Building Associates LLC) and Empire State Building Company LLC (sued herein as Empire State Building Co. LLC) is granted, and the complaint is severed and dismissed as against these defendants, and all cross claims seeking common-law indemnification and contribution as against these defendants are dismissed. Marlboro Building Associates LLC and Empire State Building Company LLC's own cross claims for common-law indemnification and contribution as against the co-defendants are dismissed.^[FN1]

Malatesta Paladino, Inc. has also established its prima facie entitlement to summary judgment as a matter of law. Novello's affidavit established that Malatesta Paladino, Inc.'s work involved neither repair of the grating at issue, nor repair of the sidewalk in the 14 inch area extending from the grating.

Plaintiff fails to raise any triable issues of fact warranting denial of Malatesta Paladino, Inc.'s motion for summary judgment. Plaintiff submits no evidence to refute Malatesta Paladino, Inc.'s contention that its work did not involve the grating at issue. Thus, it is not material whether Malatesta Paladino, Inc. could prove that when its work had begun prior to plaintiff's alleged accident. [*5]

Plaintiff also argues that, when Malatesta Paladino, Inc. erected barricades around the work area (see Novello EBT, at 16), it should have directed pedestrian traffic away from the grates and should have warned pedestrians of the defective conditions of the grates. This argument is unavailing, given plaintiff's own deposition testimony. At her deposition, plaintiff testified as follows:

"QAt that point, then did you begin to walk on the grate or something else?

A.No. I started walking immediately on regular pavement and then it was just too crowded so I changed to the grate.

Q.When you changed to grate, were you about the middle of the block, a quarter of block?

A.I was pretty much towards the beginning of the block. You know."

(Appel EBT, at 21. [emphasis supplied].) Later during her deposition, plaintiff testified:

"QWhen you were on the southwest corner of 36th Street and you looked across [omitted]— was the sidewalk from the northwest corner of 36th Street blocked in any way?

A.Yes.

Q.Was it blocked from the corner of, northwest corner of 36th Street all of the way to 37th or partially?

A.Oh, no. It was only blocked, as best I can recall, it was blocked from just crossing the street directly to the corner.

Q.And, when you were crossing 36th Street, when you got to the other side, were any people walking on the regular sidewalk?

A.Yes.

Q.Between 36th and 37th?

A.Yes. Lots of people."

Therefore, the motion for summary judgment by defendant Malatesta Paladino, Inc. is granted, the complaint is severed and dismissed as against Malatesta Paladino, Inc., and all cross claims seeking common-law indemnification and contribution as against it are dismissed too. Malatesta Paladino, Inc.'s own cross claims for common-law indemnification and contribution as against the co-defendants are dismissed.

As to the City's motion for summary judgment, the City argues that it has no liability for the allegedly defective grating because, as mentioned above, "all Transit facilities and property incidental to or necessary for the operation such transit facilities are leased to the Transit Authority from the City." pursuant to a 1953 lease agreement between the City and the New York City Transit Authority. (See Colt Affirm. ¶¶ 9-11; Colt Affirm., Ex H.) Plaintiff did not oppose the City's [*6]motion.

Therefore, the City's motion for summary judgment is granted without opposition, the complaint is severed and dismissed as against the City, and all cross claims seeking common-law indemnification and contribution against the City are dismissed too. The City's own cross claims for common-law indemnification and contribution as against the co-defendants are dismissed.

Accordingly, it is hereby

ORDERED that the motions for summary judgment by defendants Marlboro Building Associates LLC (sued herein as Marlborough Building Associates LLC) and Empire State Building Company LLC (sued herein as Empire State Building Co. LLC) (Motion Seq. No. 004), by defendant Malatesta Paladino, Inc. (Motion Seq. No. 005.), and by defendant City of New York are granted; and it is further

ORDERED that the complaint is severed and dismissed as to defendants Marlboro Building Associates LLC (sued herein as Marlborough Building Associates LLC), Empire State Building Company LLC (sued herein as Empire State Building Co. LLC), Malatesta Paladino, Inc., and the City of New York, with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that all cross claims against these defendants for common-law indemnification and contribution are severed and dismissed;

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the remainder of the action shall continue.

Dated: 11/28/11New York, New YorkENTER:

/s/

J.S.C.