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Hernan v. Long Island Railroad

Appellate Division of the Supreme Court of New York, Second Department
Mar 4, 1991
171 A.D.2d 646 (N.Y. App. Div. 1991)

Opinion

March 4, 1991

Appeal from the Supreme Court, Nassau County (Levitt, J.).


Ordered that the order dated June 26, 1989, is affirmed; and it is further,

Ordered that the appeal from so much of the order dated October 24, 1989, as denied reargument is dismissed, as no appeal lies therefrom; and it is further,

Ordered that the order dated October 24, 1989 is otherwise affirmed insofar as appealed from; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The plaintiff William A. Hernan was injured when he allegedly fell on a foreign substance on a walk ramp at the Bethpage Station of the Long Island Railroad. The plaintiff alleges that this substance was deposited by the defendant the Town of Oyster Bay (hereinafter the Town), when it treated the underbrush bordering the station. The Town moved for summary judgment dismissing the complaint insofar as it is asserted against it. In support of its motion, the Town submitted an affidavit of the Deputy Commissioner of Highways which stated that a review of the Department's books and records revealed that the Town was not involved in treating the underbrush bordering the station. Thus, the Town argues, its motion for summary judgment should have been granted. We do not agree.

The Town failed to make a prima facie showing of its entitlement to summary judgment as a matter of law (see, Zuckerman v City of New York, 49 N.Y.2d 557). The affidavit of the Deputy Commissioner of Highways was not sufficient to demonstrate the absence of any material issues of fact (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Moreover, knowledge of the facts concerning the defoliating activities of the Town, if any, are solely within the possession of the Town. Thus, at this stage of the proceedings, where no discovery has yet been conducted, the motion for summary judgment was properly denied (see, Frame v Mack Markowitz, Inc., 125 A.D.2d 442, 443).

We have examined the appellant's remaining contentions and find them to be without merit. Kooper, J.P., Lawrence, Harwood and Miller, JJ., concur.


Summaries of

Hernan v. Long Island Railroad

Appellate Division of the Supreme Court of New York, Second Department
Mar 4, 1991
171 A.D.2d 646 (N.Y. App. Div. 1991)
Case details for

Hernan v. Long Island Railroad

Case Details

Full title:WILLIAM A. HERNAN et al., Respondents, v. LONG ISLAND RAILROAD et al.…

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

Date published: Mar 4, 1991

Citations

171 A.D.2d 646 (N.Y. App. Div. 1991)
567 N.Y.S.2d 128