Cabrera v New York City Dept. of Educ.

Cabrera v New York City Dept. of Educ. 2012 NY Slip Op 00834 Decided on February 7, 2012 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 February 7, 2012
Mazzarelli, J.P., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ.
6734 7680/07

[*1]Raymin Cabrera, et al., Plaintiffs-Respondents,

v

New York City Department of Education, et al., Defendants-Appellants, Temco Service Industries, Inc., Defendant.




Lester Schwab Katz & Dwyer, LLP, New York (John
Sandercock of counsel), for appellants.
Seligson, Rothman & Rothman, New York (Martin S.
Rothman of counsel), for respondents.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 6, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion as to defendant City of New York, and otherwise affirmed, without costs.

Defendant Department of Education (DOE) is not entitled to summary judgment because there is sufficient evidence in the record to raise a question of fact as to whether it knew of a recurring dangerous condition in the fence and routinely left it unaddressed (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107 [2003]) or whether it undertook repairs and performed them negligently (see e.g. Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226-227 [2002]).

The City is not a proper party to this action (see Bailey v
City of New York, 55 AD3d 426 [2008]).

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

ENTERED: FEBRUARY 7, 2012

CLERK