Opinion
No. 2006-09511.
February 19, 2008.
In an action to recover damages for personal injuries, etc., the defendant New York Paving, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated August 2, 2006, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
Morris, Duffy, Alonso Faley, New York, N.Y. (Pauline E. Glaser of counsel), for appellant.
Edward M. Armstrong, P.C., New York, N.Y. (John V. Decolator of counsel), for plaintiffs-respondents.
Before: Mastro, J.P., Fisher, Dillon and McCarthy, JJ.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant New York Paving, Inc. (hereinafter NY Paving), failed to submit evidence sufficient to demonstrate, prima facie, that it did not create the alleged defect in the roadway ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). NY Paving failed to demonstrate that its assertion that it did not perform any work at the accident site was based on a search of its records. Accordingly, the Supreme Court properly denied the motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.