Barbitsch v. City of New York

Full title: HERTA BARBITSCH et al., Appellants, v. CITY OF NEW YORK et al.…

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

Date published: Jul 14, 1997

241 A.D.2d 472 (N.Y. App. Div. 1997)

661 N.Y.S.2d 527

Opinion

July 14, 1997

Appeal from the Supreme Court, Queens County (Price, J.).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint and all cross claims are reinstated insofar as asserted against Larchwood Construction.

We find that the opposition papers submitted by the plaintiffs, including an affidavit of a licensed professional engineer, were sufficient to demonstrate the existence of triable issues of fact as to whether Larchwood Construction's preparation of tree pits along Central Avenue between 68th Street and 67th Place in Glendale, Queens, contributed to the creation of the defective condition which allegedly caused the injured plaintiff's accident ( see, e.g., Zayas v. Half Hollow Hills Cent. School Dist., 226 A.D.2d 713; see also, Manning v. New York Tel. Co., 157 A.D.2d 264).

Bracken, J. P., O'Brien, Santucci, Friedmann and Goldstein, JJ., concur.