What did the court decide?

The appellate court affirmed the dismissal of the lawsuit against the sidewalk café operator, concluding there was no triable issue that the café forced the plaintiff into the defective slab.

Who is affected by this decision?

The immediate parties are the plaintiff (Garrido) and defendant Barawine LLC; the decision also governs similar sidewalk-café liability claims in the First Department.

Why did the court reject the plaintiff's evidence?

Because the plaintiff's deposition did not say the café forced her onto the defective slab and her later affidavit contradicted that testimony; plaintiffs' photos did not show measurements or an accumulation of tables to create a factual dispute.

Can the plaintiffs appeal further?

They could seek leave to appeal to the New York Court of Appeals, but the Appellate Division affirmed unanimously and noted preservation and sufficiency issues that weaken an appeal.

Garrido v. 200 Lenox Ave., LLC

Docket Index No. 160673/20|Appeal No. 6511|Case No. 2024-06784|

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed

Filed: May 5, 2026 · yesterday
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed
Citation: 2026 NY Slip Op 02781
Docket numbers: Index No160673/20Appeal No6511Case No2024-06784

Appeal from an order granting defendant's motion for summary judgment dismissing the complaint

Summary

The Appellate Division, First Department affirmed the trial court's grant of summary judgment dismissing plaintiff Madalina Garrido's negligence action against Barawine LLC. Garrido claimed she tripped on a sidewalk crack and that Barawine's sidewalk café forced her into the defective middle slab. The court relied on Barawine's lease disclaiming sidewalk maintenance responsibility, an engineer's affidavit finding adequate clearance to avoid the defect, and testimony that tables would not have diverted the plaintiff's path. The court found plaintiffs failed to raise a triable issue of fact and properly rejected plaintiff's affidavit as inconsistent with her deposition.

Issues Decided

Whether defendant Barawine LLC's special use of the sidewalk (via a sidewalk café) made it liable for a sidewalk defect where its lease disclaimed sidewalk maintenance responsibility
Whether the plaintiff raised a triable issue of fact that the sidewalk café forced her to walk over the defective slab
Whether the trial court properly declined to credit the plaintiff's affidavit that contradicted her deposition testimony

Court's Reasoning

The court held that Barawine made a prima facie showing of no liability by producing the lease disclaiming sidewalk maintenance, an engineer's affidavit showing sufficient clearance to avoid the defect, and testimony that the café's tables would not have diverted the plaintiff. The plaintiff's deposition said her foot "got stuck in a sidewalk crack," and she could not point to evidence that the café forced her onto that slab, so her later affidavit was properly disregarded as inconsistent. Photographs submitted by plaintiffs did not show measurements or an accumulation of tables sufficient to create a factual dispute.

Authorities Cited

Wood v City of New York98 AD3d 845 (1st Dept 2012)
Taubenfeld v Starbucks Corp.48 AD3d 310 (1st Dept 2008), lv denied 10 NY3d 713 (2008)
Smith v Costco Wholesale Corp.50 AD3d 499 (1st Dept 2008)

Parties

Plaintiff: Madalina Garrido
Appellants: Madalina Garrido et al.
Defendant: Barawine LLC
Defendant: 200 Lenox Ave., LLC
Attorney: Jack W. Lockwood II (Pollack, Pollack, Isaac & DeCicco, LLP)
Attorney: Abed Z. Bhuyan (Wade Clark Mulcahy, LLP)
Judge: Lynn R. Kotler
Judge: Webber, J.P.

Key Dates

Accident: 2020-09-21
Trial court order: 2024-10-22
Appellate decision: 2026-05-05

What You Should Do Next

1
Consider seeking leave to appeal
If the plaintiffs want to continue, they can consult counsel about applying for permission to appeal to the New York Court of Appeals, focusing on preserved, novel legal issues.
2
Evaluate settlement or alternative resolution
Parties may discuss settlement if plaintiffs do not pursue further appellate review or to avoid additional litigation costs.
3
Review evidence and record
Plaintiffs should review deposition transcripts and photographs to determine whether any preserved factual or legal errors exist that could support further review.

Frequently Asked Questions

What did the court decide?: The appellate court affirmed the dismissal of the lawsuit against the sidewalk café operator, concluding there was no triable issue that the café forced the plaintiff into the defective slab.
Who is affected by this decision?: The immediate parties are the plaintiff (Garrido) and defendant Barawine LLC; the decision also governs similar sidewalk-café liability claims in the First Department.
Why did the court reject the plaintiff's evidence?: Because the plaintiff's deposition did not say the café forced her onto the defective slab and her later affidavit contradicted that testimony; plaintiffs' photos did not show measurements or an accumulation of tables to create a factual dispute.
Can the plaintiffs appeal further?: They could seek leave to appeal to the New York Court of Appeals, but the Appellate Division affirmed unanimously and noted preservation and sufficiency issues that weaken an appeal.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Garrido v 200 Lenox Ave., LLC - 2026 NY Slip Op 02781

Garrido v 200 Lenox Ave., LLC

2026 NY Slip Op 02781

May 5, 2026

Appellate Division, First Department

Madalina Garrido et al., Plaintiffs-Appellants,

Decided and Entered: May 05, 2026

Index No. 160673/20|Appeal No. 6511|Case No. 2024-06784|

Before: Webber, J.P., Moulton, Mendez, Higgitt, Michael, JJ.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jack W. Lockwood II of counsel), for appellants.

Wade Clark Mulcahy, LLP, New York (Abed Z. Bhuyan of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered October 22, 2024, which granted defendant Barawine LLC's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff Madalina Garrido (plaintiff) alleges that on September 21, 2020, she tripped and fell over a crack on the public sidewalk next to a tree well and in front of defendant Barawine's sidewalk cafÉ. Plaintiff argues that Barawine's special use of the sidewalk left her no choice but to walk over the defective middle lane of the three-slab wide sidewalk because the outer lane was blocked by a tree well and the lane abutting the building was occupied by Barawine's umbrellas, tables, and chairs.

Barawine established its prima facie entitlement to judgment as a matter of law by submitting its lease with the building's owner, defendant 200 Lenox Avenue, LLC, stating that Barawine was not responsible for maintenance and repair of the sidewalk; an expert affidavit of an engineer who inspected the accident site and opined that there was sufficient clearance for plaintiff to walk around the alleged defect; and the deposition testimony of Barawine's owner, who stated that none of the tables across from the tree well would have diverted plaintiff's path. This evidence established as a matter of law that Barawine's special use of one portion of the sidewalk did not give rise to liability for plaintiff's fall, which occurred on a different portion of sidewalk (
see

Wood v City of New York
, 98 AD3d 845, 847 [1st Dept 2012];
Taubenfeld v Starbucks Corp.
, 48 AD3d 310, 311 [1st Dept 2008],
lv denied
10 NY3d 713 [2008]).

In opposition, plaintiffs failed to raise a triable issue of fact. When asked at her deposition why she fell, plaintiff testified only that her foot got stuck in a sidewalk crack. Given this testimony, Supreme Court properly declined to credit plaintiff's affidavit in opposition, which stated that Barawine's sidewalk cafÉ forced her to walk over the middle slab of the sidewalk where the crack extended from the tree well. Plaintiffs' argument on appeal that plaintiff was not given an opportunity to testify about the "accumulation" of tables and chairs is unpersuasive (
see Smith v Costco Wholesale Corp.
, 50 AD3d 499, 501 [1st Dept 2008]). In addition, plaintiffs' own photographs of the sidewalk taken shortly after plaintiff's accident do not support the contention that any such accumulation existed.

Plaintiffs' contention that based on their photographs, Barawine's expert's measurements must be incorrect is raised for the first time on appeal and therefore is unpreserved. In any event, we reject the argument because plaintiffs' photographs do not provide any measurements or show the space between the tree well and the relevant portion of the sidewalk cafÉ.

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 5, 2026