

Baghban v City of New York (2016 NY Slip Op 05039)





Baghban v City of New York


2016 NY Slip Op 05039


Decided on June 23, 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 23, 2016

Tom, J.P., Friedman, Richter, Kapnick, Gesmer, JJ.


1550 154912/12

[*1]Hafiz Baghban, et al., Plaintiffs-Respondents,
vCity of New York, et al., Defendants-Respondents, Judlau Contracting, Inc., Defendant, The 153 Chambers Condominium, Defendant-Appellant. 
[And a Third-Party Action]


McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz of counsel), for appellant.
Cellino & Barnes, P.C., New York (John H. Shields of counsel), for Hafiz Baghban and Marcia Baghban, respondents.
Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for City of New York, respondent.
Wilson Elser Moskowwitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Coastal Communications Services, Inc., respondent.

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered May 12, 2015, which, insofar as appealed from as limited by the briefs, denied as premature the motion of defendant 153 Chambers Condominium (153 Chambers) for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Plaintiff Hafiz Baghban was injured when he tripped and fell on a raised piece of concrete, namely, the remnants of a phone booth that had been removed a year earlier, located on the sidewalk in front of 153 Chambers's premises. "Administrative Code of the City of New York § 7-210 imposes a nondelagable duty on the owner of the abutting premises to maintain and repair the sidewalk" in a reasonably safe condition (Collado v Cruz, 81 AD3d 542, 542 [1st Dept 2011]; see Vucetovic v Epsom Downs, Inc., 10 NY3d 517 [2008]). Rules of the City of New York Department of Transportation (34 RCNY) § 2-07(b)(1) is inapplicable because it applies only to "owners of covers or gratings" on the sidewalk. Here, the condition that caused Baghban's injury did not involve either a defective cover or grating, but rather a raised piece of the sidewalk itself (cf. Lewis v City of New York, 89 AD3d 410 [1st Dept 2011]; Storper v Kobe [*2]Club, 76 AD3d 426 [1st Dept 2010]).
The court also properly held that 153 Chambers's motion was premature (CPLR 3212[f]). Plaintiff and codefendants demonstrated that additional discovery was necessary because 153 Chambers's president had yet to be deposed, and the record suggested that there were issues of fact as to whether 153 	Chambers had constructive notice of the sidewalk condition before the accident (see Figueroa v City of New York, 126 AD3d 438, 439 [1st Dept 2015]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 23, 2016
CLERK


