Rojas v. 1388 Bushwick Ave, LLC

Rojas v 1388 Bushwick Ave, LLC 2026 NY Slip Op 05563 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Felix Rojas, appellant, v 1388 Bushwick Ave, LLC, et al., respondents. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-06451, (Index No. 523889/22) Betsy Barros, J.P. Cheryl E. Chambers Janice A. Taylor Elena Goldberg Velazquez, JJ. Pontiskos & Brandman, P.C., Garden City, NY (Elizabeth Mark Meyerson of counsel), for appellant. Milber, Makris, Plousadis & Seiden, LLP, Purchase, NY (Anne E. Armstrong of counsel), for respondent 1388 Bushwick Ave, LLC. Hardin, Kundla, McKeon & Poletto, PA, New York, NY (Ross V. Carpenter of counsel), for respondent Atlas Builders, LLC. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Steven Z. Mostofsky, J.), dated April 10, 2025. The order, insofar as appealed from, granted those branches of the separate motions of the defendant 1388 Bushwick Ave, LLC, and the defendant Atlas Builders, LLC, which were for summary judgment dismissing the complaint insofar as asserted against each of them. ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant 1388 Bushwick Ave, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that branch of that defendant's motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendant 1388 Bushwick Ave, LLC, and one bill of costs to the defendant Atlas Builders, LLC, payable by the plaintiff. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when he fell on a sidewalk located in Brooklyn. The property adjacent to the sidewalk was owned by the defendant 1388 Bushwick Ave, LLC (hereinafter the owner). At the time of the incident, the owner had contracted with the defendant Atlas Builders, LLC (hereinafter Atlas), for construction management services at the premises. The owner and Atlas separately moved, among other things, for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated April 10, 2025, the Supreme Court, inter alia, granted those branches of the separate motions. The plaintiff appeals. Administrative Code of the City of New York § 7-210 "imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonable safe condition, and provides that said owners are liable for personal injury that is proximately caused by [*2]such failure" (Sangaray v West Riv. Assoc., LLC, 26 NY3d 793, 797). However, Administrative Code of the City of New York § 7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable (see Muhammad v St. Rose of Limas R.C. Church, 163 AD3d 693, 693; Kabir v Budhu, 143 AD3d 772, 773). Thus, to prevail on its summary judgment motion, a defendant is required to establish that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it (see Muhammad v St. Rose of Limas R.C. Church, 163 AD3d at 693; Kabir v Budhu, 143 AD3d at 773). Here, the owner's submissions in support of its motion failed to eliminate all triable issues of fact as to whether the alleged defect had existed for a sufficient length of time for the owner to have discovered and remedied it (see CPLR 4532-b; Ryabaya v City of New York, 220 AD3d 903, 904). Therefore, the owner failed to demonstrate that it lacked constructive notice of the alleged defective condition of the sidewalk (see Wendy-Geslin v Oil Doctors, 226 AD3d 727, 730; Muhammad v St. Rose of Limas R.C. Church, 163 AD3d at 694; Kabir v Budhu, 143 AD3d at 773). Since the owner failed to establish its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied that branch of the owner's motion which was for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). However, the Supreme Court properly granted that branch of Atlas's motion which was for summary judgment dismissing the complaint insofar as asserted against it. Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140). "However, a party that enters into a contract to render services may be said to have assumed a duty of care, and thus, be potentially liable in tort to third persons, where (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Bell v Bollenbach & House, Inc., 240 AD3d 844, 845 [internal quotation marks omitted]; see Espinal v Melville Snow Contrs., 98 NY2d at 140). Where the pleadings do not allege facts that would establish the applicability of any of the Espinal exceptions, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law (see Nesbitt v Advanced Serv. Solutions, 224 AD3d 841, 842; Forbes v Equity One Northeast Portfolio, Inc., 212 AD3d 780, 781-782). "However, where any of the Espinal exceptions are pleaded in the complaint or the bill of particulars, a defendant contractor is required to demonstrate that those pleaded exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law" (Nesbitt v Advanced Serv. Solutions, 224 AD3d at 843; see Conrad v Global Indus. Servs., Inc., 180 AD3d 868, 869). Here, Atlas established, prima facie, that its construction contract with the owner did not give it a comprehensive and exclusive obligation to maintain the property so as to entirely displace the owner's duty to keep the adjacent sidewalk in a reasonably safe condition (see Balagyozyan v Federal Realty L.P., 191 AD3d 749, 752; Leitch-Henry v Doe Fund, Inc., 179 AD3d 655, 656). Atlas also established that the alleged defective condition in the sidewalk could not be attributed to an affirmative act of negligence on its part, because it had not yet begun physical construction at the time of the plaintiff's accident (see Zorin v City of New York, 137 AD3d 1116, 1118). In opposition, the plaintiff failed to raise a triable issue of fact (see Cortes v City of New York, 188 AD3d 643, 644; Balagyozyan v Federal Realty L.P., 191 AD3d at 752). Accordingly, the Supreme Court properly granted that branch of Atlas's motion which was for summary judgment dismissing the complaint insofar as asserted against it. BARROS, J.P., CHAMBERS, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court