Brown v City of New York

Brown v City of New York 2011 NY Slip Op 08893 Decided on December 6, 2011 Appellate Division, Second 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 December 6, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2011-04796
(Index No. 34164/08)

[*1]Brenda Brown, plaintiff-respondent,

v

City of New York, appellant, Soo Gil Cho, et al., defendants-respondents.




Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Kristin M. Helmers and Michael Shender of counsel), for appellant.
Avanzino & Moreno, P.C., Brooklyn, N.Y. (Angelicque
Moreno and Oliver R. Tobias of counsel), for
plaintiff-respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant City of New York appeals from an order of the Supreme Court, Kings County (Sherman, J.), dated February 25, 2011, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, with costs payable by the defendant City of New York to the plaintiff.

On its motion for summary judgment in this action to recover damages for personal injuries, the defendant City of New York failed to establish its prima facie entitlement to judgment dismissing the complaint and all cross claims insofar as asserted against it. The City contended, inter alia, that the Big Apple Map for the area where the plaintiff fell did not provide it with prior written notice of the alleged defect that caused the plaintiff to fall.

Where, as here, "there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff's fall, and whether the alleged defect is designated on the map, the question should be resolved by the jury'" (Bradley v City of New York, 38 AD3d 581, 582, quoting Cassuto v City of New York, 23 AD3d 423, 424; see Vertsberger v City of New York, 34 AD3d 453, 455-456; Almadotter v City of New York, 15 AD3d 426, 427; Quinn v City of New York, 305 AD2d 570, 571).

Accordingly, the Supreme Court properly denied the City's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

In light of our determination, we need not reach the parties' remaining contention. [*2]
RIVERA, J.P., LEVENTHAL, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court