Abrevaya v. Steckman

303 A.D.2d 329, 757 N.Y.S.2d 266, 2003 N.Y. App. Div. LEXIS 3252

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered November 14, 2002, which, in an action for personal injuries sustained when plaintiff tripped over an oil fill cap in the sidewalk in front of a building owned by defendant, denied defendant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Issues of fact exist as to whether the oil fill cap was hazardous, including whether it was raised above or sunk below the surface of the sidewalk, and, if so, its elevation or depth (see Schechtman v Lappin, 161 AD2d 118, 121 [1990]; cf. Trincere v County of Suffolk, 90 NY2d 976 [1997]). We are unable to discern from the photographs in the record that, as defendant claims, the cap was at grade with the sidewalk or just below it. Concur — Tom, J.P., Mazzarelli, Sullivan, Williams and Gonzalez, JJ.