Posted On: April 14, 2012 by Stephen Bilkis

A taxi driver was walking alone a sidewalk in Woodside, New York

A taxi driver was walking alone a sidewalk in Woodside, New York at 6:00 a.m. He was on the sidewalk outside 60-01 31st Avenue when he stepped on a raised and elevated sidewalk flag. This caused him to trip and fall. He fractured his right arm as a result of the trip and fall and he sued the owner of the premises as well as the two tenants of the premises who had shops abutting the sidewalk. The taxi driver’s wife joined the suit. She claimed damages for personal losses she sustained as a wife who lost the usual financial support from her husband that she was accustomed to, and for personal losses because she was unable to have normal conjugal relations with her husband during the time of his confinement due to his fractured right arm.
The owner of the premises and the taxi driver were deposed during discovery. The tenants of the premises did not depose the taxi driver. But then later both of the tenants filed separate motions for summary judgment against the owner of the premises and against the taxi driver and his wife.

The tenants alleged that as mere tenants they are not obligated by the law to maintain the premises. It is the owner of the premises who is obligated under the Administrative Code of New York who is responsible for injuries resulting from the negligent maintenance of sidewalks outside the property owned by them.

The tenants also assert that they are mere lessees and there is no showing that they derived special use of the premises. There is no evidence in the record to show that they created the defect in the sidewalk which caused the taxi driver to trip and fall. There is no evidence to show that they made any repair work on the sidewalk which caused the defect. They insist that they are entitled under the law to be released as parties to this lawsuit.

The taxi driver opposed the motion for summary judgment asking that the case be dismissed against the tenants. He asserts that there is no evidence on the record that the defendants are only tenants. The tenants failed to attach a copy of their lease to their motion for summary judgment. They also did not attach a sworn affidavit of any person who had personal knowledge that tenants did not perform and repair work on the sidewalk which caused the defect.

The Supreme Court is then tasked to decide on whether or not the tenants are entitled to a summary judgment of dismissal of the case against them. The Court decided to deny the motion for summary judgment.

The Court noted that under the laws of procedure, the tenants had to show that they are entitled to a summary judgment. It is their burden to present preliminary evidence ( from the pleadings and documents identified during the deposition) that they cannot be held responsible for the negligence and that they did not create the defect as they never used the sidewalk or performed any repair work on it.

The Court noted that, as observed by the taxi driver, the tenants did forget to attach a copy of their lease agreement which would prove that they are mere tenants and not the owners of the premises and as such, they cannot held liable for the negligence. This inadvertence on the part of the counsel is fatal to their motion for summary judgment.

Also the Court noted that there is no affidavit attached to the tenants’ motion for summary judgment except the affidavit of the counsel for the tenants alleging that the tenants have not derived any special use from the sidewalk outside the premises nor have they performed any repair on the sidewalk which could have caused the defect.

The affidavit of the counsel for the tenants cannot be relied upon as admissible evidence to support a motion for summary judgment because the counsel for the tenants has no personal knowledge about any special use or repair work performed on the sidewalk. He is incompetent to swear to those facts because he has no personal knowledge of them. Only the tenants themselves or their employees and personnel can have personal knowledge of those facts.
The Court denied the tenants’ motion for summary judgment.

Perhaps you are a tenant of a building which abuts a sidewalk. Have you been sued for negligence like the tenant in this case? Did you know that as a mere tenant, you cannot be made liable for any negligence if you did not have special use of the sidewalk or if you did not create the defect in the sidewalk?

Being sued in court is often a stressful reality that you are unprepared for. Do not grope in the dark. You need to consult a New York Trip and Fall attorney who can apprise you of your rights and obligations under the law as a tenant. At Stephen Bilkis & Associates, their New York Trip and Fall attorneys are well-trained to guide you in the intricacies and complexities of damage suits such as these and ensure that you can have your day in court. They can present evidence and argue your case to shift the liability to the owner as the law mandates and so mitigating your liability as a mere tenant. Call Stephen Bilkis & Associates today; confer with any of their New York Trip tand Fall attorneys at any of their offices in the New York area and be well-informed or your rights.