Background
Odalys Fuentes tripped and fell on a crack in the sidewalk along Metropolitan Avenue in the Bronx, abutting 1488 Metropolitan Avenue — a property owned by Parkchester South Condominium, Inc. and leased to Leroy Pharmacy. Three facts were undisputed: (1) Administrative Code of the City of New York § 7-210 assigned sidewalk-maintenance liability exclusively to Parkchester, not to the commercial tenant; (2) the pharmacy’s lease contained no obligation to maintain the sidewalk; and (3) Parkchester’s own property manager testified that Parkchester alone was responsible for repairing sidewalk defects. The pharmacy moved for summary judgment after the close of discovery, supported by an affidavit from its store manager denying that anyone at Pharmacy had made repairs to the sidewalk before the accident.
Supreme Court, Bronx County denied the motion. It held that Pharmacy had failed to carry its initial burden because it had not affirmatively demonstrated that it neither caused nor created the sidewalk condition, citing the general rule that in premises liability cases a defendant moving for summary judgment must produce such affirmative proof. Plaintiff opposed by pointing to photographs showing that one end of the sidewalk crack touched the edge of a cellar door through which Pharmacy received deliveries, arguing this raised a triable issue of fact as to a “special use” of the sidewalk.
The Appellate Division, First Department reversed in a 4-1 decision authored by Justice Friedman, with Justice Webber dissenting.
The Court’s Holding
The majority articulated a modified burden-shifting framework for commercial tenants that have no duty over the premises at issue. The general rule — that a defendant moving for summary judgment must affirmatively demonstrate it did not create or have notice of a defect — presupposes that the defendant had some control over or duty with respect to the premises. Where, as here, the tenant had no statutory, common-law, or contractual responsibility for the sidewalk, requiring affirmative proof of non-causation would compel a party to prove a negative about property over which it had no control — particularly unrealistic five years after the accident. The majority held that Pharmacy’s demonstration of no duty to maintain the sidewalk was sufficient prima facie showing to shift the burden to plaintiff.
With the burden shifted, the majority held plaintiff’s opposition was speculative. The photographs showing the crack’s proximity to the cellar door did not establish a causal connection without expert evidence. The majority also rejected plaintiff’s special use argument on two grounds. First, even if Pharmacy made a special use of the cellar door itself, that special use extended only to responsibility for maintaining the cellar door, not the surrounding sidewalk. Second, Pharmacy’s receipt of manual deliveries over the sidewalk — however frequent — did not constitute a special use under settled First Department precedent, including Keech v. 30 E. 85th St. Co. (154 AD3d 504 [1st Dept 2017]) (Lululemon’s delivery receipt on trolleys not special use) and Chaudhry v. Starbucks Corp. (213 AD3d 521 [1st Dept 2023]) (another Parkchester commercial tenant, same result).
The dissent (Webber, J.P.) would have affirmed, arguing that the presence of the cellar door — for which Pharmacy did have responsibility — created at minimum a triable issue as to whether Pharmacy’s operations caused or contributed to the crack. The dissent also maintained that the majority’s modified burden rule improperly relieved the moving defendant of its obligation under Winegrad v. New York Univ. Med. Ctr. (64 NY2d 851) to establish a prima facie case.
Key Takeaways
- A commercial tenant that demonstrates it had no statutory or contractual duty to maintain the abutting sidewalk establishes a prima facie case for summary judgment without additionally proving that it did not cause the defect — the burden then shifts to plaintiff to produce affirmative evidence of causation or special use.
- Receipt of manual deliveries over a sidewalk to a cellar door, regardless of frequency, does not constitute a “special use” of the sidewalk in the First Department; the special-use duty extends only to the specific appurtenance used (e.g., the cellar door itself), not the surrounding pavement.
- The decision widens an existing split in authority about what it takes for a no-duty defendant to get out of a premises liability case at the summary judgment stage — the dissent signals this question is not settled.
- Defendants like Pharmacy can protect themselves procedurally by developing the delivery-frequency record at deposition; plaintiff’s failure to pursue that discovery here was specifically noted as foreclosing the special-use argument.
Why It Matters
This decision has broad practical consequences for commercial tenants in New York City — pharmacies, restaurants, retailers, and any business operating out of a ground-floor space that abuts a public sidewalk. Under Fuentes, a commercial tenant that can point to its lease and Administrative Code § 7-210 to show that the landlord (not the tenant) owns the sidewalk maintenance duty can exit sidewalk-defect litigation at summary judgment without conducting a forensic analysis of how the crack developed or hiring an expert to rebut causation theories that plaintiff never formally asserted.
The dissent’s vigorous disagreement — and the majority’s candid acknowledgment that it is departing from the usual Winegrad framework — suggest this question may be headed toward the full bench or the Court of Appeals. For now, defense counsel handling sidewalk-defect cases in the First Department should document the lease’s silence on sidewalk maintenance obligations early, obtain a clear admission from the landlord’s witness that the landlord alone bears that duty, and move for summary judgment before plaintiff has the opportunity to retain a structural expert to connect any nearby appurtenance to the crack’s origins.