

Schwartz v City of New York (2019 NY Slip Op 02465)





Schwartz v City of New York


2019 NY Slip Op 02465


Decided on April 2, 2019


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 April 2, 2019

Sweeny, J.P., Manzanet-Daniels, Kern, Singh, JJ.


8860 158614/14E

[*1]Rory Schwartz,	 Plaintiff-Appellant,
vThe City of New York, et al., Defendants, Val-Mac Restaurant, Inc., et al., Defendants-Respondents.


Gruenberg Kelly Della, Ronkonkoma (Zachary M. Beriloff of counsel), for appellant.
Law Office of James J. Toomey, New York (Jason Meneses of counsel), for respondents.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about January 2, 2018, which granted the motion of defendants Val-Mac Restaurant, Inc., Spain Restaurant and Bar, and Julio Diaz (collectively Val-Mac) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff tripped and fell in a tree well as he walked on the sidewalk in front of Val-Mac's property, which was undergoing repairs to a sewer line running to the street. Absent evidence that Val-Mac controlled the construction or made special use of the sidewalk, there is no issue of fact as to whether it proximately caused the accident, rather than "merely furnish[ing] the condition or occasion for the occurrence of the event" (Sheehan v City of New York, 40 NY2d 496, 503 [1976]; Singh v McCrossen, 111 AD3d 531, 532 [1st Dept 2013]). As the tree well is not part of the sidewalk under Val-Mac's control, the court properly granted summary judgment (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521-522 [2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 2, 2019
CLERK


