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Saxton v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
May 30, 2006
29 A.D.3d 981 (N.Y. App. Div. 2006)

Opinion

2004-10813.

May 30, 2006.

In an action to recover damages for personal injuries, the defendant H.H.M. Associates, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 13, 2004, as, upon reargument, adhered to a prior determination in an order dated March 3, 2003, denying its motion for summary judgment dismissing the complaint insofar as asserted against it.

Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Peter Kreymer of counsel), for appellant.

Corpina, Piergrossi, Overzat Klar, LLP (Peter K. Overzat and Pollack, Pollack, Isaac DeCicco New York, N.Y. [Brian J. Isaac] of counsel), for respondent.

Before: Schmidt, J.P., Santucci, Rivera and Skelos, JJ., concur.


Ordered that the order dated September 13, 2004 is affirmed insofar as appealed from, with costs.

The Supreme Court, upon reargument, properly adhered to its prior determination denying the motion of the defendant H.H.M. Associates, Inc. (hereinafter HHM), for summary judgment dismissing the complaint insofar as asserted against it. There remains a triable issue of fact as to whether or not HHM created the alleged defect that caused the plaintiff's accident ( see Padula v. City of Long Beach, 20 AD3d 555, 556; Cucuzza v. City of New York, 2 AD3d 389, 390; Maggio v. City of New York, 305 AD2d 554, 555; Gerena v. Town of Brookhaven, 280 AD2d 450; cf. Tsviling v. City of New York, 275 AD2d 367).

Accordingly, HHM was not entitled to summary judgment dismissing the complaint insofar as asserted against it ( see Alvarez v. Prospect Hosp., 68 NY2d 320).


Summaries of

Saxton v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
May 30, 2006
29 A.D.3d 981 (N.Y. App. Div. 2006)
Case details for

Saxton v. City of New York

Case Details

Full title:DELORES SAXTON, Respondent, v. CITY OF NEW YORK, Defendant, and H.H.M…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 30, 2006

Citations

29 A.D.3d 981 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 4270
815 N.Y.S.2d 476