Bocanegra v City of New York

Bocanegra v City of New York 2007 NY Slip Op 09354 [45 AD3d 797] November 27, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Amparo Bocanegra, Respondent,
v
City of New York et al., Respondents, and Cobar Construction Corp., Appellant.

—[*1] John P. Humphreys, Melville, N.Y. (David R. Holland and Scott Driver of counsel), for appellant.

Beth J. Schlossman, Brooklyn, N.Y. (David Feinsilver and H. Jonathan Rubinstein of counsel), for plaintiff-respondent. In an action to recover damages for personal injuries, the defendant Cobar Construction Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered September 29, 2006, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

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

The defendant Cobar Construction Corp. failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Johnston v City of New York, 18 AD3d 712 [2005]). Under the circumstances, a triable issue of fact exists as to whether it created a depression in the crosswalk which allegedly caused the plaintiff to fall. Goldstein, J.P., Skelos, Dillon and Covello, JJ., concur.