The following e-filed documents, listed by NYSCEF document number, were considered on Defendants Columbus Townhouse Associates and KB Companies Inc.’s motion for summary judgment (sequence 002): 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74,92, 96, 98, 100, 103, 104, The following e-filed documents, listed by NYSCEF document number, were considered on Defendant City of New York’s motion for summary judgment (sequence 003): 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 97, 101, 102, 105 DECISION ORDER ON MOTION BACKGROUND AND PROCEDURAL HISTORY Plaintiff Emil Kaalund commenced this action against Defendants City of New York (the “City”), Consolidated Edison Company of New York, Inc. (“Con Ed”), and Columbus Townhouse Associates and KB Companies, Inc. (the “Columbus Defendants”) to recover for injuries allegedly sustained in a January 16, 2016 trip-and-fall on a “defective, upraised steel bar protruding from a metal” sidewalk grate with a broken hinge abutting 600 Columbus Avenue, New York, New York, at or near the intersection of Columbus Avenue and 89th Street. The Columbus Defendants and the City now move, pursuant to CPLR 3212, for summary judgment dismissing the Complaint (sequences 002 and 003, respectively). Con Ed and Plaintiff oppose the Columbus Defendants’ motion.1 The City’s motion is unopposed. For the reasons below, after oral argument, both motions are granted. DISCUSSION Summary judgment is a “drastic remedy” and will only be granted in the absence of any material issues of fact (id.). To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (Zuckerman v. City of N.Y., 49 NY2d 557 [1980]; Jacobsen v. New York City Health and Hospitals Corp., 22 NY3d 824 [2014]; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The movant’s initial burden is a heavy one; on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 NY3d at 833). If the moving party fails to make its prima facie showing, the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v. New York Univ. Med. Center, 4 NY2d 851, 853 (1985]). However, if the moving party meets its burden, the burden shifts to the party opposing the motion to establish, by admissible evidence, the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for the failure to do so (Zuckerman, 49 NY2d at 560; Jacobsen, 22 NY3d at 833; Vega v. Restani Construction Corp., 18 NY3d 499,503 [2012]). I. Columbus Defendants’ motion for summary judgment (002) In any negligence action, a plaintiff must prove: (1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof (Akins v. Glens Falls City Sch. Dist., 53 NY2d 325, 333 [1981]). As to the first element, liability for a dangerous condition on real property must be predicated upon a defendant’s ownership, occupancy, control, or special use of the subject property (Valmon v. 4 M & M Corp., 291 AD2d 343, 344 [1st Dept 2002], citing Hilliard v. Roc-Newark Assoc., 287 AD2d 691 [2d Dept 2001]). Here, according to Plaintiff’s Bill of Particulars and deposition testimony, Plaintiff tripped on a six-inch metal rod protruding from the sidewalk grate near the corner of Columbus Avenue and 89th Street, abutting a 7-Eleven (NYSCEF 62 [Bill of Particulars]/NYSCEF 63 [P1 EBT] 10:6-24, 19:5-20). The owners of sidewalk grates are responsible for their maintenance (Cruz v. New York City Tr. Auth, 19 AD3d 130 [1st Dept 2005]; 34 RCNY §2-07[b][1] ["The owners of covers or gratings on a street are responsible for monitoring the condition of the covers, gratings and concrete pads installed around such covers or gratings and the area extending twelve inches outward from the edge of the cover, grating, or concrete pad, if such pad is installed."]). In support of their motion, the Columbus Defendants attach Con Ed’s responses to two notices to admit acknowledging Con Ed’s ownership of a utility fault numbered 9365 under the sidewalk abutting 600 Columbus Avenue (NYSCEF 64-67). The Columbus Defendants also attach Con Ed’s October 4, 2019 discovery response, which included the exchange of a report of Con Ed’s inspection of vault 9365 on August 17, 2015, five months before Plaintiff’s fall (NYSCEF 69). The Columbus Defendants also attach the deposition transcript of Con Ed Field technical specialist Daniel Dunbar, which confirmed Con Ed’s inspection of the vault and grate (NYSCEF 7014:19, et seq.; NYSCEF 71). Thus, the Columbus Defendants meet their burden by demonstrating Con Ed’s ownership of the grate, which Con Ed essentially concedes. In further support, the Columbus Defendants attach the deposition transcript and affidavit of Jorge Vasquez, the District Manager at Grenadier Realty, which managed 600 Columbus Avenue, which both contain denials that the Columbus Defendants owned, repaired, maintained, controlled or otherwise made special use of the subject vault cover or grate (NYSCEF 72, 73). In opposition, Con Ed argues that Vasquez’s testimony acknowledged the Columbus Defendants’ sweeping and shoveling the subject grate, and thus “it is entirely plausible that the alleged damage to the subject grate was caused and created by [the Columbus Defendants] during snow removal efforts” (NYSCEF 100 [Con Ed Opp] 6). While the Columbus Defendants concede, in reply, that their “sidewalk clearing operations necessitated employees to have some contact with Con Edison’s sidewalk grate,” (NYSCEF 103 [Columbus Reply] 6), a movant “need not specifically disprove every remotely possible state of facts on which its opponent might win the case” (Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009]), “particularly when the opponent’s theorizing is farfetched” (Justinian Capital SPC v. WestLB AG, 28 NY3d 160 [2016]). While the possibility of snowfall between August 17, 2015, the date of Con Ed’s last inspection, and January 16, 2016, the date of Plaintiff’s fall, is certainly plausible, Con Ed does not point to any evidence in the record actually evidencing a snowfall, and the Columbus Defendants’ cleanup, during that time period (id. at 168 ["mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat summary judgment"]). Accordingly, summary judgment dismissing the Complaint against the Columbus Defendants is appropriate. II. City motion for summary judgment (003) The City also moves for summary judgment, arguing that the City is liable for neither the sidewalk abutting the subject property nor the subject grate, and that the City did not cause or create the subject defect. The City’s motion is unopposed. N.Y.C. Administrative Code §7-210(b) provides: Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two-or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes. N.Y.C. Administrative Code §7-210(c) provides, in relevant part: Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition. In support of its motion, the City attaches the affidavit of David Atik, an employee of the New York City Department of Finance, which maintains the Property Tax System (“PTS”) database (NYSCEF 89 ["Atik Aff"]
