Guante v City of New York

Guante v City of New York 2020 NY Slip Op 02244 Decided on April 9, 2020 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 April 9, 2020
Friedman, J.P., Kapnick, Webber, González, JJ.
11363

[*1] Alfredo Guante, 25684/17E Plaintiff-Respondent,

v

The City of New York, et al., Defendants-Respondents, Emilio Del Villar, et al., Defendants-Appellants.

McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place (James M. Hayes of counsel), for appellants.

Wingate, Russotti, Shapiro & Halperin, LLP, New York (Joseph P. Stoduto of counsel), for Alfredo Guante, respondent.

James E. Johnson, Corporation Counsel, New York (Mackenzie Fillow of counsel), for The City of New York and The New York City Department of Parks and Recreation, respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about June 24, 2019, which denied the motion of defendants Emilio and Maria Del Villar for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants Emilio and Maria Del Villar failed to establish prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that he was injured when he tripped and fell on the sidewalk abutting their property.

Although the City is responsible for maintaining the area that is designated a bus stop location (see Bednark v City of New York, 162 AD3d 565 [1st Dept 2018]), the motion court properly denied defendants' motion as premature, since discovery had not been completed. On the record presented, there is no way to determine whether plaintiff fell within a designated bus stop (see McCormick v City of New York, 165 AD3d 565 [1st Dept 2018]; Munasca v Morrison Mgt. LLC, 111 AD3d 564, 565 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 9, 2020

CLERK