ACCIDENT VICTIM TRIPS ON FENCE SURROUNDING SIDEWALK TREE WELL; BUILDING OWNER WINS SUMMARY JUDGMENT DISMISSING CASE

Court: Supreme Court, Appellate Division, First Department, New York

Case: Combier v. City of New York

Date: June 12, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered April 28, 2011, which, in an action for personal injuries sustained when plaintiff tripped and fell over fencing surrounding a tree well on the sidewalk abutting a building owned by defendant/third‑party plaintiff El Kam Realty Co. (El Kam), granted El Kam's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

El Kam established its entitlement to judgment as a matter of law. El Kam submitted evidence showing that it did not install, maintain, control or repair the fencing around the tree well which allegedly caused plaintiff's fall (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008]). In opposition, plaintiff failed to raise a triable issue of fact. Although plaintiff argued that El-Kam contracted to have third‑party defendant perform work to improve the subject tree well, plaintiff made no showing that El-Kam assumed any control over that work (see Fernandez v. 707, Inc., 85 A.D.3d 539, 926 N.Y.S.2d 408 [2011]).

We have considered plaintiff's remaining arguments and find them unavailing.

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