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Gomez v. Congregation K'Hal Adath Jeshurun, Inc.

Supreme Court, Appellate Division, First Department, New York.
Mar 12, 2013
104 A.D.3d 456 (N.Y. App. Div. 2013)

Summary

In Gomez v Congregation K'Hal Adath Jeshurun, Inc. (104 AD3d 456 [1st Dept 2013]), the Appellate Division cited D'Amico with approval, when it unanimously affirmed denial of the defendant's motion for summary judgment on the ground of trivial defect.

Summary of this case from Fajardo v. N.Y.C. Transit Auth.

Opinion

2013-03-12

Aurora GOMEZ, Plaintiff–Respondent, v. CONGREGATION K'HAL ADATH JESHURUN, INC., etc., Defendant–Appellant.

Meiselman, Denlea, Packman, Carton & Eberz P.C., White Plains (Peter N. Freiberg of counsel), for appellant. Silbowitz, Garafola, Silbowitz, Schatz & Frederick, LLP, New York (Mitchell Silbowitz of counsel), for respondent.



Meiselman, Denlea, Packman, Carton & Eberz P.C., White Plains (Peter N. Freiberg of counsel), for appellant. Silbowitz, Garafola, Silbowitz, Schatz & Frederick, LLP, New York (Mitchell Silbowitz of counsel), for respondent.
SWEENY, J.P., MOSKOWITZ, ABDUS–SALAAM, ROMÁN, FEINMAN, JJ.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 1, 2012, which, in this personal injury action arising from a trip and fall on a sidewalk abutting defendant landowner's property, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting its administrative manager's testimony that defendant lacked notice of any hazardous condition on the property, that the alleged sidewalk defect appeared to be “trivial,” and that there had been no prior complaints or violations involving the alleged defective sidewalk ( see Schwartz v. Bleu Evolution Bar & Rest. Corp., 90 A.D.3d 488, 935 N.Y.S.2d 10 [1st Dept. 2011] ).

Plaintiff's papers in opposition, however, raised triable issues of fact as to whether the one-half-inch differential between two sidewalk flags was a “substantial defect” under 34 RCNY 2–09(f)(5)(iv) and Administrative Code of the City of New York § 19–152(a)(4) and (a–1)(5), and whether the alleged defect had existed for a sufficient length of time to put defendant on notice of the condition ( see D'Amico v. Archdiocese of N.Y., 95 A.D.3d 601, 944 N.Y.S.2d 106 [1st Dept. 2012];Narvaez v. 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500, 501, 930 N.Y.S.2d 561 [1st Dept. 2011] ).


Summaries of

Gomez v. Congregation K'Hal Adath Jeshurun, Inc.

Supreme Court, Appellate Division, First Department, New York.
Mar 12, 2013
104 A.D.3d 456 (N.Y. App. Div. 2013)

In Gomez v Congregation K'Hal Adath Jeshurun, Inc. (104 AD3d 456 [1st Dept 2013]), the Appellate Division cited D'Amico with approval, when it unanimously affirmed denial of the defendant's motion for summary judgment on the ground of trivial defect.

Summary of this case from Fajardo v. N.Y.C. Transit Auth.
Case details for

Gomez v. Congregation K'Hal Adath Jeshurun, Inc.

Case Details

Full title:Aurora GOMEZ, Plaintiff–Respondent, v. CONGREGATION K'HAL ADATH JESHURUN…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Mar 12, 2013

Citations

104 A.D.3d 456 (N.Y. App. Div. 2013)
961 N.Y.S.2d 100
2013 N.Y. Slip Op. 1490

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