Commercial Tenant’s Summary-Judgment Burden on Sidewalk Defects: No Duty/No Control Shifts Burden Absent Nonspeculative Evidence of Creation or Special-Use Causation

1. Introduction

Fuentes v Parkchester S. Condominium, Inc. (2026 NY Slip Op 03920) is a First Department decision addressing a recurring New York City sidewalk-injury scenario: a plaintiff sues both the owner (statutorily responsible under Administrative Code § 7-210) and a commercial tenant of the abutting premises.

The plaintiff, Odalys Fuentes, alleged she tripped on a crack in the sidewalk along Metropolitan Avenue in the Bronx. The sidewalk abutted premises owned by Parkchester South Condominium, Inc. and occupied by the tenant, Leroy Pharmacy. Leroy Pharmacy appealed from an order denying its motion for summary judgment.

Key issues:

  • Whether a commercial tenant that proves it has no statutory or contractual sidewalk-maintenance duty must still affirmatively prove it did not create the defect to obtain summary judgment.
  • Whether a photograph showing a crack touching the edge of the tenant’s cellar door—without expert proof or a causal mechanism— raises a triable issue under the special use doctrine.

2. Summary of the Opinion

The First Department (Friedman, J.) reversed and granted summary judgment to Leroy Pharmacy, dismissing the complaint as against it. The Court held that once the commercial tenant established (after discovery closed) it had no legal or contractual duty to maintain the sidewalk—and offered evidence it did not undertake sidewalk repairs—the burden shifted to the plaintiff to come forward with nonspeculative evidence that the tenant either:

  • affirmatively caused/created the defect, or
  • made a special use of the sidewalk area tied to the defect.

Plaintiff’s reliance on the crack’s proximity to the cellar door, shown in photographs, was deemed speculative and insufficient. A dissent (Hagler, J.) would have required the tenant, as the movant, to affirmatively prove non-creation and no special-use causation.

3. Analysis

3.1. Precedents Cited

A. Burden on summary judgment and “proof of a negative”

  • Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985): cited for the general rule that if a movant fails to establish a prima facie entitlement to judgment, the motion must be denied regardless of the opposing papers. The majority did not reject Winegrad; instead, it narrowed how “prima facie” should operate where the defendant lacks control/duty and would otherwise be asked to prove a negative proposition.
  • Harvey v Henry 85 LLC, 176 AD3d 443 (1st Dept 2019): relied on by Supreme Court to demand proof that the movant did not cause or create the defect. The majority distinguished Harvey because that defendant was the owner of the adjoining premises, unlike Leroy Pharmacy (a commercial tenant with no § 7-210 duty).
  • Schaal v City of Utica, 6 AD3d 1070 (4th Dept 2004), affd 3 NY3d 727 (2004): used to underscore that speculation about who created a defect is insufficient—even when a defendant constructed the sidewalk—reinforcing the majority’s insistence on evidence rather than conjecture.

B. Special use doctrine—definition, scope, and causal connection

  • Kaufman v Silver, 90 NY2d 204, 207 (1997): quoted for the special use concept. The majority emphasized that special use requires more than mere adjacency and must be tied to a private benefit and the relevant portion of the sidewalk.
  • Kellogg v All Sts. Hous. Dev. Fund Co., Inc., 146 AD3d 615, 617 (1st Dept 2017): cited by the majority for the proposition that special use imposes a duty to maintain “the part used” in a reasonably safe condition. The Court used this to separate (i) a cellar door (arguably a special-use structure) from (ii) the surrounding sidewalk where plaintiff tripped, absent evidence tying the defect to the door.
  • Prete v JJ Hoyt LLC, — AD3d —, 2026 NY Slip Op 00458, *1 (1st Dept 2026): invoked for the “tied to” formulation—liability requires evidence that the defect is causally tied to the special use. The majority treated Prete as consistent with granting summary judgment here because the record contained no evidence tying the crack to the cellar door.
  • Fatty v City of New York, 232 AD3d 415, 416 (1st Dept 2024): central to the majority’s approach—summary judgment is proper where the record contains no nonspeculative evidence that the alleged special use caused or created the defect. The Court rejected the dissent’s attempt to distinguish Fatty, emphasizing that lack of nonspeculative causation evidence controls.
  • Weiskopf v City of New York, 5 AD3d 202 (1st Dept 2004): plaintiff’s principal case. The majority distinguished it because the Weiskopf plaintiff presented expert evidence that the subway entrance substructure caused the defect, while Fuentes presented none.
  • LaRosa v Corner Locations, II, L.P., 169 AD3d 512, 513 (1st Dept 2019): raised by the dissent to suggest cellar doors can create joint liability. The majority distinguished it factually because the plaintiff there tripped on the cellar door itself.

C. Deliveries and “special use” of sidewalks

The majority reaffirmed First Department authority that ordinary deliveries traversing a sidewalk (e.g., by hand truck/trolley) generally do not constitute special use:

  • Keech v 30 E. 85th St. Co., LLC, 154 AD3d 504, 505 (1st Dept 2017)
  • Rodriguez v City of New York, 48 AD3d 298, 298 (1st Dept 2008)
  • Tyree v Seneca Ctr.-Home Attendant Program, 260 AD2d 297, 297-298 (1st Dept 1999)
  • Kaminer v Dan's Supreme Supermarket/Key Food, 253 AD2d 657, 657 (1st Dept 1998)

It also cited similar Second Department decisions:

  • Jordan v City of New York, 23 AD3d 436, 437 (2d Dept 2005)
  • Ioffe v Hampshire House Apt. Corp., 21 AD3d 930, 931 (2d Dept 2005)
  • Yee v Chang Xin Food Mkt., 302 AD2d 518, 519 (2d Dept 2003)

The majority acknowledged an exception line where motor vehicles use the sidewalk for access/deliveries: Peretich v City of New York, 263 AD2d 410, 411 (1st Dept 1999); Infante v City of New York, 258 AD2d 333, 334 (1st Dept 1999); Mincey v Mensch, 253 AD2d 656, 656 (1st Dept 1998). But it found no record evidence that any vehicle was driven onto the sidewalk for Pharmacy’s operations.

D. Tenant exoneration based on duty allocation (and speculation rejection)

  • Chaudhry v Starbucks Corp., 213 AD3d 521, 523 (1st Dept 2023): the majority treated Chaudhry as directly instructive: where the owner is the only entity responsible for sidewalk repairs under the Administrative Code and lease, speculative arguments about tenant liability fail. The Court analogized Leroy Pharmacy to Starbucks (commercial tenant) and emphasized Parkchester’s manager’s testimony that Parkchester alone was responsible for repairs.

E. Dissent’s reliance on “movant must negate creation/special use” cases

The dissent relied heavily on decisions it read as imposing a prima facie burden on the tenant to affirmatively negate creation or special-use causation:

  • Colon v City of New York, 247 AD3d 403, 403 (1st Dept 2026), citing Prete v JJ Hoyt LLC (driveway special-use context). The majority distinguished Colon/Prete as driveway cases where the defect occurred on the portion used as a driveway—unlike the sidewalk crack here.
  • Granville v City of New York, 211 AD2d 195, 197-198 (1st Dept 1995) and Feldman v Kings Hero Rest., 270 AD2d 1, 1 (1st Dept 2000): cited by the dissent for the idea that photographs showing cracks “emanating from” a special-use structure can defeat summary judgment. The majority viewed the present record as lacking any non-speculative causal showing or even a proposed mechanism.
  • Colonna v Allen, 35 AD3d 517, 518 (2d Dept 2006): invoked by the dissent to argue the movant bears the initial burden to show no special use. The majority distinguished Colonna because the sidewalk there was “part of an active driveway,” i.e., special use of the precise area of the fall.
  • Danis v John C. Food Corp., 179 AD3d 606, 606 (1st Dept 2020): used by the dissent to attack the probative value of the store manager’s later affidavit relative to deposition testimony. The majority treated the “repairs” point as secondary given the threshold lack of duty/control.

3.2. Legal Reasoning

  1. Duty/control is the gateway. The majority framed the case as atypical: unlike an owner or tenant-in-possession with a duty to maintain, Leroy Pharmacy established it lacked statutory duty (Administrative Code § 7-210 applies to owners) and contractual duty (lease imposed none), and the landlord’s property manager testified Parkchester alone repaired sidewalk defects.
  2. Prima facie showing can be satisfied by “no duty/no responsibility” in this setting. Because the tenant had no duty/control over the sidewalk, the Court rejected a rigid requirement that the tenant must also “affirmatively prove” it did not create the defect—calling that an unrealistic demand to prove a negative, especially years after the incident and after discovery was closed.
  3. Burden shifts to plaintiff to produce evidence of affirmative causation or special-use causation. After the tenant’s showing, the plaintiff needed evidence that the tenant’s acts contributed to the crack or that a special use of the relevant area existed and caused the defect. Plaintiff offered only speculative inferences from photos and unsupported possibilities (deliveries or hypothetical repairs).
  4. Special use requires a causal tie, not proximity. Even assuming the cellar door is a special-use structure, the majority held plaintiff must present nonspeculative evidence tying the sidewalk crack to the cellar door. A crack touching the door’s edge, without more, does not identify origin or mechanism of causation.
  5. Manual deliveries are not special use of the sidewalk. The Court reaffirmed that routine pedestrian-level delivery activity over a sidewalk does not constitute special use, absent evidence of vehicle loading/driveway-type use or comparable encroachment.

3.3. Impact

Practical litigation impact in NYC sidewalk cases:

  • Earlier and cleaner tenant exits. Commercial tenants can more effectively obtain dismissal after discovery by demonstrating absence of statutory/contractual responsibility and lack of evidence tying them to creation/special use.
  • Higher evidentiary demand on “photo-only” special-use theories. Plaintiffs may need expert proof or concrete factual development (e.g., engineering explanation, maintenance history, installation/alteration proof) to link a sidewalk defect to a cellar door or similar structure.
  • Discovery strategy consequences. The opinion implicitly penalizes failure to pursue discovery on deliveries, vehicles, repairs, or alterations before filing the note of issue; after discovery closes, speculation will not fill the evidentiary gap.
  • Doctrinal clarity (First Department). The decision harmonizes “special use” cases by emphasizing the requirement of a nonspeculative causal connection between the special use and the defect—echoing Fatty v City of New York—and distinguishes driveway cases (Prete v JJ Hoyt LLC; Colon v City of New York) where the defect sits on the special-use portion itself.

4. Complex Concepts Simplified

Administrative Code § 7-210
A NYC law that generally shifts sidewalk maintenance liability to owners of abutting property. It typically does not impose that duty on commercial tenants unless the tenant separately assumes responsibility by contract or creates liability through its own acts.
Special use
A doctrine imposing responsibility when an owner/occupier derives a private benefit from an installation or use of the public way (e.g., driveway curb cut, vault doors, cellar doors) beyond ordinary public sidewalk use. Liability generally requires that the defect be causally connected—i.e., “tied to”—that special use.
Prima facie showing on summary judgment
The movant must show entitlement to judgment as a matter of law. Here, the majority held that for a defendant with no duty/control over the area, establishing that absence of duty/responsibility can suffice to shift the burden, rather than requiring the movant to disprove every hypothetical causal scenario.
Nonspeculative evidence
Evidence that supports a causal inference without guesswork—often requiring concrete facts (who installed/altered the structure, repair records, witness testimony) and sometimes expert analysis where the mechanism of cracking/settlement is technical.

5. Conclusion

Fuentes v Parkchester S. Condominium, Inc. establishes a consequential First Department rule for sidewalk-defect cases involving commercial tenants: after discovery closes, a tenant that demonstrates it has no statutory or contractual duty (and no responsibility/control acknowledged by the owner) may obtain summary judgment without being forced to “prove a negative” that it did not create the defect—unless the plaintiff produces nonspeculative evidence tying the defect to the tenant’s affirmative acts or a special use that caused the condition.

The decision tightens the evidentiary link required between special-use appurtenances (like cellar doors) and nearby sidewalk defects, signaling that proximity and photographs alone will often be insufficient without a developed causal record.