Washam v. O'Hathairne Bros., Inc. , 146 A.D.3d 408 ( 2017 )

Washam v O'Hathairne Bros., Inc. (2017 NY Slip Op 00008)

Washam v O'Hathairne Bros., Inc.

2017 NY Slip Op 00008

Decided on January 3, 2017

Appellate Division, First Department

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2017
Friedman, J.P., Sweeny, Richter, Manzanet-Daniels, Kapnick, JJ.

2596 20339/14

[*1]Ian M. Washam, et al., Plaintiffs-Appellants,

v

O'Hathairne Brothers, Inc., et al., Defendants, Michael F. Harney, et al., Defendants-Respondents.

O'Hare Parnagian LLP, New York (Andrew C. Levitt of counsel), for appellants.

McMahon & McCarthy, Bronx (John E. Boneta of counsel), for respondents.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered April 14, 2016, which, to the extent appealed from as limited by the briefs, granted the Harney defendants' motion to dismiss the amended complaint, unanimously affirmed, without costs.

In this action for personal injuries allegedly sustained by plaintiff Ian Washam when he slipped and fell on a sidewalk abutting property purportedly owned, operated and controlled by defendants, the Harney defendants submitted a deed demonstrating that they had conveyed the property to defendant O'Hathairne Brothers, Inc. almost 10 years before plaintiff's accident, and therefore were not responsible for maintaining the abutting sidewalk (see Administrative Code of City of NY § 7-210). The documents submitted by plaintiffs failed to rebut the presumption that the deed was delivered and accepted (see M & T Real Estate Trust v Doyle, 20 NY3d 563, 568 [2013]). Further, although plaintiffs alleged that the Harney defendants operated and controlled the premises, plaintiffs did not allege that the Harney defendants did so to the exclusion of O'Hathairne Brothers (see Worthy v New York City Hous. Auth., 21 AD3d 284, 288 [1st Dept 2005]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2017

CLERK