The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83 were read on this motion for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, Philjo Holding Corporation (“Philjo”) and Hughes Tavern LLC’s (“Hughes Tavern”) motion, pursuant to CPLR §3212, for summary judgment dismissing this action is denied for the reasons set forth below. Plaintiff brings this action to recover for injuries allegedly sustained on April 13, 2018, when she tripped and fell on “uneven sidewalk flagstones, and a gap between said sidewalk flagstones” in front of 1682 First Avenue, New York, New York (the “Building”), at the corner of 88th Street and First Avenue (NYSCEF Doc. No. 56 [Compl. at 20]). In her affidavit in opposition to the instant motion, plaintiff attests that two separate defects within the subject sidewalk caused her to fall: My accident occurred, when the toe of my left foot went inside an uneven gap in the sidewalk, which was about 2 inches deep x 2 inches wide, and located about an inch off of the curb. I tried to catch myself, but stumbled forward, catching my other foot in a second uneven gap, which was located closer to the curb, a little above the curb, and had a crack in it. As a result, I was caused to continue to move forward, landing on my knee, turning over and landing on my buttocks. (NYSCEF Doc. No. 78 [Blackwell Aff. at 7]). Photographs marked at her examination before trial (“EBT”) depict one defect within a pedestrian ramp and the other defect within a sidewalk flag adjacent to the pedestrian ramp. This sidewalk flag contains a traffic pole signal embedded within it (See NYSCEF Doc. Nos. 66-68]). Plaintiff asserts negligence claims against1: (i) the City of New York and New York City Department of Transportation (collectively, the “City”), (ii) Philjo, the owner of the Building, and (iii) Hughes Tavern, the lessee of the Building. Plaintiff alleges that each of these defendants caused and created the defective sidewalk conditions and failed to remedy same. Philjo and Hughes Tavern now move, pursuant to CPLR §3212, for summary judgment dismissing plaintiff’s complaint and all crossclaims against them. Philjo argues that it is exempt from liability because the pedestrian ramp does not fall within the ambit of Administrative Code §7-210 and that any obligation to maintain and repair the sidewalk flag in question was displaced under 34 RCNY §2-20 and adds that it did not cause or create the defective condition or made special use of the area of plaintiff’s fall. Hughes Tavern argues that, as a commercial tenant, it does not owe plaintiff a duty of care, and neither caused or created the defective condition nor made special use of the area of plaintiff’s fall. In support of their motion, Philjo and Hughes Tavern submit the affidavit of James Moran, in which he attests that he and his brother each own fifty percent of Hughes Tavern, and adds that: Hughes Tavern occupies the first floor of the building at 1682 First Avenue and operates a restaurant. The tavern was in business and in operation on and prior to plaintiff’s alleged accident of April 13, 2018. Hughes Tavern orally leases the ground floor space at 1682 First Avenue from Philjo Holding Corporation, the owner of the building. My parents, James and Teresa Moran, are the owners of Philjo Holding Corporation. … I have reviewed the photographs of the accident location and the alleged conditions on and around the pedestrian ramp[,] which plaintiff alleges caused her to trip and fall back on April 13, 2018…Prior to plaintiffs alleged accident of April 13, 2018, I had never previously taken notice of either of these conditions having been present on the sidewalk. Neither Hughes Tavern nor Philjo maintained this area of the sidewalk prior to, or after the April 13, 2018 accident alleged. No repairs had ever been made to the pedestrian ramp or the flagstone upon which the traffic control devices were situated, prior to plaintiffs accident of April 13, 2018[,] by either Philjo or Hughes Tavern. No actions on the part of Philjo or Hughes Tavern caused the alleged defective conditions to exist as no work had ever been performed on the sidewalk, at this location, while neither Philjo nor Hughes Tavern made any special use of the sidewalk at this specific location. (NYSCEF Doc. No. 64 [Moran Aff. at
