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Lorquet v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 2004
6 A.D.3d 504 (N.Y. App. Div. 2004)

Opinion

2003-04848.

Decided April 12, 2004.

In an action to recover damages for personal injuries, the defendants Charles Loftin, Sr., Almeida Loftin, and Charles L. Loftin, Jr., appeal from an order of the Supreme Court, Kings County (Knipel, J.), dated April 24, 2003, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Gilroy Downes Horowitz Goldstein, New York, N.Y. (Thomas Dillon of counsel), for appellants.

Erich H. Green, New York, N.Y. (Marc Gertler and Paul Ehrlich of counsel), for plaintiff-respondent.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Janet L. Zaleon of counsel) for defendant-respondent City of New York.

Before: GLORIA GOLDSTEIN, J.P., HOWARD MILLER, THOMAS A. ADAMS, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff alleges that she sustained injuries when she tripped on a defect in a sidewalk located in front of property owned by defendants Charles Loftin, Sr., Almeida Loftin, and Charles L. Loftin, Jr. (hereinafter the Loftins). Once the Loftins made a prima facie showing that they were entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against them, the burden shifted to the parties opposing the motion to produce sufficient evidentiary proof in admissible form evincing a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Contrary to the Loftins' contention, in opposition to the prima facie showing of entitlement to judgment as a matter of law, Mrs. Loftin's examination before trial testimony raised a triable issue of fact as to whether her act of removing flowers from the spot where the plaintiff allegedly fell created the defect complained of or caused an existing defect to worsen. Therefore, the Supreme Court properly denied the Loftins' motion for summary judgment.

GOLDSTEIN, J.P., H. MILLER, ADAMS and COZIER, JJ., concur.


Summaries of

Lorquet v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 2004
6 A.D.3d 504 (N.Y. App. Div. 2004)
Case details for

Lorquet v. City of New York

Case Details

Full title:ROSE LORQUET, plaintiff-respondent, v. CITY OF NEW YORK, ET AL.…

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

Date published: Apr 12, 2004

Citations

6 A.D.3d 504 (N.Y. App. Div. 2004)
774 N.Y.S.2d 421