Defective Sidewalk – Do not look at Con Ed (NY)
In Curiel v. City of New York, the Supreme Court, New York County addressed whether the defendants – Con Edison, 1) owned the location where plaintiff allegedly fell, 2) cause or create the subject location and 3) that it was under a legal duty to repair the subject condition.
The Supreme Court granted Con Edison’s motion for summary judgment to dismiss the complaint and all cross claims asserted against it.
Plaintiff allegedly tripped and fell on a public sidewalk on Hillside Avenue near its intersection with Nagle Avenue directly adjacent to the curb line in the crosswalk at the corner in front of 1 Nagle Avenue approximately two (2) feet from the pedestrian traffic signal pole.
The Supreme Court stated that “Generally, a duty must be predicated upon ownership, occupancy, control or special use of the property. Further, “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. Upon such showing, the burden shifts to the party opposing the motion “to raise a triable issue of fact as to the creation of the defect or notice thereof.” (citations omitted)
Through plaintiff’s 50-h hearing transcript, and the deposition transcript of their own records searcher, Con Edison was able to establish that they 1) do not own the land where the accident occurred; 2) did not create the subject condition and 3) that it was not under a legal duty to repair such condition.
As such, the Con Edison was granted summary judgment dismissing the plaintiff’s complaint.
This decision serves as a reminder that when sued for a defective sidewalk to first consider: do you owe the plaintiff a duty of care? If no, summary judgment may be a viable option.
Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions.