Johannsen v Rudolph

Johannsen v Rudolph 2006 NY Slip Op 08648 [34 AD3d 338] November 21, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Thea Johannsen, Respondent,
v
Bestany Rudolph et al., Appellants.

—[*1]

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered February 3, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff contends that she tripped on a plastic packaging hoop while walking on the sidewalk near defendants' alleyway dumpsters and that refuse had been present on the subject sidewalk area on many occasions. It is undisputed that at the time of the accident, defendants were under no statutory duty to maintain the sidewalk. Plaintiff claims that defendants created the dangerous condition because no other store on the subject street, but for defendants' store, disposed of plastic packaging hoops similar to the one that allegedly caused plaintiff to trip and fall. This averment was contained in an attorney's affirmation submitted in opposition to defendants' motion for summary judgment. It was not made on the basis of personal knowledge of the facts or supported by evidence in admissible form and, therefore, was insufficient to defeat the motion for summary judgment (Diaz v New York City Tr. Auth., 12 AD3d 316 [2004]; Ramos v New York City Hous. Auth., 264 AD2d 568 [1999]). Concur—Andrias, J.P., Nardelli, Gonzalez, Sweeny and Catterson, JJ.