Randell v City of New York

Randell v City of New York 2008 NY Slip Op 09466 [57 AD3d 231] December 2, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Joan Randell et al., Respondents,
v
City of New York et al., Appellants.

—[*1] London Fischer LLP, New York (Marc M. Mahoney of counsel), for appellants.

The Cochran Firm, New York (Joseph S. Rosato of counsel), for respondents.

Order, Supreme Court, New York County (Debra A. James, J.), entered July 22, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The injured plaintiff allegedly tripped and fell in a depression next to a manhole cover as she was crossing a street in lower Manhattan. The road had been milled for paving the night before, and asphalt ramps had been placed around the manhole covers in order to smooth the transition. Shortly after the accident, the injured party's husband observed the gap to be four to five inches deep, eight inches wide, and 10 inches long. Plaintiffs' description of the time, place and circumstances of the accident presents triable issues of fact as to whether the defect was trivial (see Argenio v Metropolitan Transp. Auth., 277 AD2d 165 [2000]), and whether the temporary road work had been negligently performed (see Mendoza v City of New York, 170 AD2d 198 [1991]; Sternbach v Cornell Univ., 162 AD2d 922 [1990]). Concur—Tom, J.P., Nardelli, McGuire, Acosta and DeGrasse, JJ.