The Second Department determined neither the abutting property owner nor the city were entitled to summary judgment in this sidewalk slip and fall case. The property owner did not demonstrate it did not have a duty to maintain the sidewalk and it did not have constructive knowledge of the defect. The city demonstrated it did not have written notice of the defect but did not demonstrate it did not create the defect:
Approximately 1½ months prior to the incident, the defendant City of Long Beach had excavated a portion of the sidewalk and backfilled it with a temporary patch, cordoning off the area with safety barrels and yellow caution tape. At the time of the incident, the safety barrels and yellow caution tape were not present. …
With respect to [the property owner], “[g]enerally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land” … . “The exceptions to this rule are when the landowner actually created the dangerous condition, made negligent repairs that caused the condition, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk” … . The Charter of the City of Long Beach imposes a duty on landowners to maintain and repair abutting sidewalk … . …
The City's evidentiary submissions failed to eliminate triable issues of fact as to whether its work on the sidewalk immediately left it in a condition that was dangerous to pedestrians and bicyclists … . Since the City did not establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact … . Trela v City of Long Beach, 2018 NY Slip Op 00190, Second Dept 1-10-18
NEGLIGENCE (SLIP AND FALL, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SIDEWALKS, NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT))