Dibitetto v. Ferriello

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about November 23, 2012, which, insofar as appealed from, granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant established entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when, while walking on the sidewalk in front of defendant’s home, she fell after her foot became stuck in a depression in the grassy area between the concrete sidewalk and the curb. Defendant, as the owner and resident of a one-family home adjacent to the area where plaintiff fell, submitted evidence showing that he did not cause or create the subject depression (see Administrative Code of City of NY § 7-210 [b]; Troncoso v City of New York, 306 AD2d 208 [1st Dept 2003]). In opposition, plaintiff failed to present nonhearsay evidence in admissible form sufficient to raise a triable issue of fact as to whether defendant caused or created the condition (see Waiters v Northern Trust Co. of N.Y., 29 AD3d 325, 327 [1st Dept 2006]; 502 see also Kane v Estia Greek Rest., 4 AD3d 189, 190 [1st Dept 2004]). Concur — Acosta, J.E, Andrias, Saxe, Freedman and Feinman, JJ.