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David Toste v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Feb 27, 2007
37 A.D.3d 821 (N.Y. App. Div. 2007)

Opinion

No. 2005-07125.

February 27, 2007.

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.

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.

Before: Prudenti, P.J., Krausman, Dillon and McCarthy, JJ.


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; Hughes v City of New York, 304 AD2d 618). 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).


Summaries of

David Toste v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Feb 27, 2007
37 A.D.3d 821 (N.Y. App. Div. 2007)
Case details for

David Toste v. City of New York

Case Details

Full title:DAVID TOSTE, Appellant, v. CITY OF NEW YORK et al., Respondents

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

Date published: Feb 27, 2007

Citations

37 A.D.3d 821 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 1728
832 N.Y.S.2d 52