Osborne v New York City Dept. of Parks & Recreation

Osborne v New York City Dept. of Parks & Recreation 2013 NY Slip Op 07545 Decided on November 14, 2013 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 November 14, 2013
Gonzalez, P.J., Friedman, Sweeny, Moskowitz, Clark, JJ.
11043 309083/10

[*1]Dijon Osborne, Sr., Plaintiff-Appellant,

v

New York City Department of Parks and Recreation, et al., Defendants-Respondents.




Finkelstein & Partners, Newburgh (George A. Kohl, 2nd of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Elliott
M. Davis of counsel), for respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 2, 2012, which, in an action for personal injuries sustained in a motor vehicle accident, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff established his entitlement to judgment as a matter of law by showing that as he was stopped at a traffic light, his vehicle was struck from behind by defendants' truck (see Agramonte v City of New York, 288 AD2d 75 [1st Dept 2001]).

In opposition, defendants raised a triable issue of fact as to whether an unanticipated slippery condition on the road caused the subject accident (see DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490 [2d Dept 2010]). There is also a question as to whether defendant driver's truck suffered an unexpected brake failure, inasmuch as he testified that although he had checked the brakes in the morning and found them to be in good working order, the brakes failed to hold prior to the accident, and he was uncertain whether they had malfunctioned (see Jackson v Young, 226 AD2d 230, 231 [1st Dept 1996]; Hubert v Tripaldi, 307 AD2d 692, 694 [3d Dept 2003]).

We have considered plaintiff's remaining contentions and find them unavailing.

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

ENTERED: NOVEMBER 14, 2013

CLERK