Guante v. City of New York

Full title: Alfredo Guante, 25684/17E Plaintiff-Respondent, v. The City of New York…

Court: Appellate Division of the Supreme Court of the State of New York

Date published: Apr 9, 2020

2020 N.Y. Slip Op. 2244 (N.Y. App. Div. 2020)

Opinion

11363

04-09-2020

Alfredo Guante, 25684/17E Plaintiff-Respondent, v. The City of New York, et al., Defendants-Respondents, Emilio Del Villar, et al., Defendants-Appellants.

McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place (James M. Hayes of counsel), for appellants. Wingate, Russotti, Shapiro & Halperin, LLP, New York (Joseph P. Stoduto of counsel), for Alfredo Guante, respondent. James E. Johnson, Corporation Counsel, New York (Mackenzie Fillow of counsel), for The City of New York and The New York City Department of Parks and Recreation, respondents.

Friedman, J.P., Kapnick, Webber, González, JJ.

McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place (James M. Hayes of counsel), for appellants.

Wingate, Russotti, Shapiro & Halperin, LLP, New York (Joseph P. Stoduto of counsel), for Alfredo Guante, respondent.

James E. Johnson, Corporation Counsel, New York (Mackenzie Fillow of counsel), for The City of New York and The New York City Department of Parks and Recreation, respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about June 24, 2019, which denied the motion of defendants Emilio and Maria Del Villar for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants Emilio and Maria Del Villar failed to establish prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that he was injured when he tripped and fell on the sidewalk abutting their property.

Although the City is responsible for maintaining the area that is designated a bus stop location (see Bednark v City of New York, 162 AD3d 565 [1st Dept 2018]), the motion court properly denied defendants' motion as premature, since discovery had not been completed. On the record presented, there is no way to determine whether plaintiff fell within a designated bus stop (see McCormick v City of New York, 165 AD3d 565 [1st Dept 2018]; Munasca v Morrison Mgt. LLC, 111 AD3d 564, 565 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 9, 2020

CLERK