April 26, 2016 - M&H Wins Dismissal of Case Against NYC Business Improvement District

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In this personal injury action grounded in a theory of premises liability, the Appellate Division, First Department, affirmed the award of summary judgment in favor of M&H’s client, a non-profit organization, finding as a matter of law that the design of a Herald Square sidewalk extension was not a proximate cause of the accident.

Sheryll v United Gen. Constr.

2016 NY Slip Op 03117 [138 AD3d 612]

April 26, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 1, 2016

[*1] Andrea Sheryll et al., Appellants, et al., Plaintiffs,

v

United General Construction et al., Appellants, and City of New York et al., Respondents.

The Altman Law Firm, PLLC, New York (Michael T. Altman of counsel), for Sheryll, appellants.

Lewis Johs Avallone Aviles, LLP, Islandia (Robert A. Lifson of counsel), for United General Construction and Afzal Choudry, Rashin Mostafizur, appellants.

Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for the City of New York, respondent.

Mischel & Horn, PC, New York (Scott T. Horn of counsel), for 34th Street Partnership, Inc., respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 26, 2014, which granted defendants City of New York's and 34th Street Partnership, Inc.'s motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered December 4, 2013, to the extent it denied plaintiffs' motion to renew their motion to strike the City's answer for failure to provide discovery, unanimously dismissed, without costs, as academic.

There is no evidence that the accident in which plaintiff Andrea Sheryll was struck on the sidewalk by an automobile driven by defendant Rashin Mostafizur was caused by anything other than Mostafizur's loss of control of his vehicle when he pressed on the accelerator instead of the brake pedal, as he testified, and jumped the curb after swerving to avoid a pedestrian in the street (see Margolin v Friedman, 57 AD2d 763 [1st Dept 1977], affd 43 NY2d 982 [1978]; Chowes v Aslam, 58 AD3d 790, 791 [2d Dept 2009]; Rivera v Goldstein, 152 AD2d 556 [2d Dept 1989]). Contrary to plaintiffs' contention, the sidewalk extension onto which Mostafizur swerved, hitting a large decorative planter before ending up on the sidewalk, did not jut into the lane in which he was driving, and its design was not a proximate cause of the accident.

Notwithstanding the City's disregard of outstanding discovery orders, in light of the foregoing, plaintiffs' appeal from the order denying their motion for renewal is academic.

[*2] We have considered plaintiffs' remaining contentions and find them unavailing. Concur—Sweeny, J.P., Saxe, Moskowitz, Gische and Webber, JJ.