Toste v City of New York

Toste v City of New York 2007 NY Slip Op 01728 [37 AD3d 821] February 27, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

David Toste, Appellant,
v
City of New York et al., Respondents.

—[*1] Gersowitz Libo & Korek, P.C., New York, N.Y. (Edward H. Gersowitz, Jeff S. Korek, and Brian Isaac of counsel), for appellant.

Tromello, McDonnell & Kehoe, Melville, N.Y. (Stephen J. Donnelly of counsel), for respondent Fischer Leverich, LLC.

In a consolidated action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of Supreme Court, Queens County (Elliot, J.), entered June 24, 2005, as granted that branch of the motion of the defendant Fischer Leverich, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured on April 2, 2002 when he fell on the sidewalk adjacent to property owned by the defendant Fischer Leverich, LLC (hereinafter Fischer). Fischer established its prima facie entitlement to judgment as a matter of law by establishing that it did not negligently repair the subject sidewalk (see Hausser v Giunta, 88 NY2d 449, 452-453 [1996]; Hughes v City of New York, 304 AD2d 618 [2003]). In response, the plaintiff failed to raise a triable issue of fact, particularly since it was admitted that no construction was performed pursuant to a permit for sidewalk repair issued on July 11, 2001 for the accident location (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Prudenti, P.J., Krausman, Dillon and McCarthy, JJ., concur.