Upon the foregoing papers, the plaintiff moves to renew and reargue the Decision and Order of this Court (Hon. Adrian N. Armstrong) dated September 8, 2020, and upon renewal, for an Order denying the motion of the defendant, BELMONT DISTRICT MANAGEMENT ASSOCIATION, INC.'s (hereinafter "Belmont") for summary judgment.

In this personal injury action, the plaintiff seeks damages for a fall that occurred July 10, 2015, in a tree well located on the sidewalk abutting premises at 663 Crescent Avenue in Bronx County.

Defendant Belmont previously moved for summary judgment dismissing the action. (Motion Sequence No. 2.). Belmont argued in its moving papers that it could not be held liable for the condition of the subject area where the plaintiff allegedly fell, because it neither caused nor created the alleged sidewalk defect, nor did it have a duty to maintain or repair the sidewalk either by statute or contract. Belmont relied on an affidavit from its executive director Philip Marino that stated that Belmont was not the owner of the property at 663 Crescent Avenue, and did not have any responsibility to care for and/or maintain the subject sidewalk and/or tree well adjacent to the property. In opposition, plaintiff opposed the summary judgment motion by proffering an affirmation by its counsel contending that prior to the date of the accident, Belmont conducted a parade and/or street fair on the street and/or sidewalk area at or near the accident location, and installed a tent stake within the tree pit. It is therefore alleged by plaintiff that Belmont is liable for creating the dangerous and defective condition. Plaintiff did not attach any affidavits or other admissible proof to show that Belmont was conducting a street fair or parade on Crescent Avenue at or around the time of plaintiff's accident. In reply, Belmont contends that in opposition to its motion, plaintiff failed to submit any admissible proof to show that it was conducting a street fair or parade on Crescent Avenue on the date of the plaintiff's alleged incident. Mr. Marino, Belmont's executive director, stated in an affidavit that Belmont never conducted any such street fair or parade on Crescent Avenue on or before the alleged date of the plaintiff's incident, nor did they place the spike/stake in the alleged area.

This Court granted the motion of defendant Belmont to dismiss.

The Court now grants reargument. The Court notes that the allegations concerning the placement of a "tent spike" (a bent piece of metal resembling a steel rebar) in the subject tree well were not at all clear from the summons, complaint and bill of particulars. Only with the utmost care could a reasonable person discern from the bill of particulars that one of the plaintiff's claims was that defendant Belmont had created the condition. The substance of this allegation was only made clear after examining the unauthenticated photograph submitted by the plaintiff, which was attached to the attorney's affirmation submitted in opposition to the prior motion.

In view of the foregoing, it was easy, considering that the claim was not clearly articulated, and considering that the plaintiff failed to come forward with evidentiary proof, to overlook the fact that the burden on summary judgment as to all claims is placed on the moving defendant. It is well established that "[a] defendant who moves for summary judgment in a slip and fall action has the initial burden of making a prima facie demonstration that it neither created the hazardous condition nor had actual or constructive notice of its existence" (Smith v. Costco Wholesale Corp., 50 AD3d 499, 500, 856 N.Y.S.2d 573 [1st Dept. 2008] [Emphasis added]). While the defendant's affidavit in support of the motion states in conclusory terms that it did not "cause and/or create" any defective condition, the affidavit is totally lacking as to any evidentiary showing that it did not install any tents or devices in the subject area. Since the defendant failed to make a prima facie showing that it did not create the condition complained of, the motion for summary judgment dismissing the complaint should have been denied, regardless of the sufficiency of the plaintiff's opposition papers. (Lauzon v Stop & Shop Supermarket, 188 AD3d 856, 857, 135 N.Y.S.3d 424, 425 [2d Dept. 2020].)

Moreover, the plaintiff has now adduced advertising materials showing that defendant Belmont sponsored or conducted numerous fares, feasts or street celebrations in the general area prior to the time of the accident. The defendant again submits an affidavit of its Executive Director (recently appointed after the earlier motion was submitted). She recites that various activities that Belmont conducts do not extend to the area of the accident. However, she does not identify the basis of her knowledge, and her conclusory statements are not corroborated by witnesses, or any maps, permits or documents that would show the extent of these activities in 2015. Nor is there any evidence as to the manner in which street fair tents are erected and maintained during these events. Under these circumstances, where knowledge and/or documents concerning street fairs, parade routes, street fair attendees, and similar discovery is peculiarly in the knowledge and possession of the defendant, summary judgment is premature.

Accordingly, it is hereby,

ORDERED that reargument is granted, and upon reargument, the Order of this Court dated September 8, 2020 (Armstrong, J.) is vacated and recalled, and the motion of the defendant Belmont for summary judgment dismissing the complaint is denied.

This is the Decision and Order of the Court.