

Sewesky v City of New York (2016 NY Slip Op 05234)





Sewesky v City of New York


2016 NY Slip Op 05234


Decided on June 30, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 30, 2016

Mazzarelli, J.P., Renwick, Moskowitz, Gische, Gesmer, JJ.


1629 111091/10

[*1]Michael Sewesky, Plaintiff-Respondent,
vThe City of New York, et al., Defendants-Respondents, Council on the Environment, Inc., et al., Defendants-Appellants.


Harris, King Fodera & Correia, New York (Kevin J. McGinnis of counsel), for appellants.
Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for Michael Sewesky, respondent.
Zachary W. Carter, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for The City of New York and New York City Department of Parks and Recreation, respondents.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered April 3, 2015, which denied the motion of defendants Council on the Environment, Inc. and GrowNYC, Inc. (together, GrowNYC) for summary judgment dismissing the complaint and any cross claims as against them, unanimously reversed, on the law, without costs, and the motion granted.	The Clerk is directed to enter judgment accordingly.
Plaintiff allegedly fell in a City-owned community garden when he tripped over the edge of a concrete slab bordering a patch of dirt and was lacerated by rebar or wires sticking out of the concrete. Defendant GrowNYC, a non-profit organization, provided funding and assistance for a renovation project in the garden that was completed three years before plaintiff's accident.
In support of its motion, GrowNYC demonstrated that it does not own, occupy, control or make any special use of the garden, and that it had no involvement with the garden after the renovation project was completed. It thus had no duty to maintain the premises in reasonably safe condition that could give rise to liability to third parties injured there (see Balsam v Delma Eng'g Corp., 139 AD2d 292, 296-297 [1st Dept 1988], lv dismissed, denied 73 NY2d 783 [1988]; see generally Espinal v Melville Snow Contrs., 98 NY2d 136, 139-141 [2002]; Church v Callahan Indus., 99 NY2d 104, 111 [2002]).
To the extent GrowNYC could be held liable to plaintiff for creating an unreasonable risk of harm (see id.; see also Rosen v Long Is. Greenbelt Trail Conference, Inc., 19 AD3d 400 [2d Dept 2005], lv denied 6 NY3d 703 [2006]), it demonstrated through the testimony of its assistant director, Leonard Librizzi, that it did not create the tripping hazard, but assisted in upgrading the deteriorated garden and clearing it of tripping hazards (see D'Amico v Archdiocese of N.Y., 95 AD3d 601 [1st Dept 2012]). Further, Librizzi did not see any condition of wires or rebar sticking out of concrete in the garden during the renovation project, and plaintiff, who had been a member of the garden for nine years, could not say how long the condition existed before his accident.
In opposition, neither plaintiff nor the City presented any evidence, and therefore did not raise a triable issue of fact as to whether GrowNYC created the tripping hazard (id.). Speculation by plaintiff and the City that GrowNYC may have been involved in construction in the area of [*2]plaintiff's fall, which may have caused the defective condition, is insufficient to raise an issue of fact (see Caraballo v Kingsbridge Apt. Corp., 59 AD3d 270, 270-271 [1st Dept 2009]; Kane v Estia Greek Rest., 4 AD3d 189, 190 [1st Dept 2004]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 30, 2016
CLERK


