Bivona v. City of New York

Appellate Division of the Supreme Court of New York

Bivona v. City of New York

198 A.D.2d 61, 603 N.Y.S.2d 151, 1993 N.Y. App. Div. LEXIS 10479

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 9, 1993

StatusPublished

This text of 198 A.D.2d 61 (Bivona v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bivona v. City of New York, 198 A.D.2d 61, 603 N.Y.S.2d 151, 1993 N.Y. App. Div. LEXIS 10479 (N.Y. Ct. App. 1993).

Pincite

Opinion

—Order, Supreme Court, New York County (Eugene Nardelli, J.), entered October 30, 1992, which, inter alia, denied the motion of defendant York Scaffold & Equipment Corp. (York) for summary judgment dismissing the complaint against it pursuant to CPLR 3212, unanimously affirmed, without costs.

Plaintiff alleges that she was injured on January 3, 1989, when she tripped and fell on a cracked and otherwise defective sidewalk on West 22nd Street between Sixth and Seventh Avenues. In moving for summary judgment, defendant York, which had erected a sidewalk bridge over the area for the protection of pedestrians during construction on the premises, argued that it was not responsible for maintaining the sidewalk, nor had it created or contributed to any crack in the sidewalk or other defect which caused plaintiff’s fall.

Among other things, however, defendant has not established a prima facie case that the weight of the bridge, and its long presence on the site, could not have caused the sidewalk to crack or shift in some manner. The affidavit of defendant-appellant’s vice president, who was not shown to have any expertise or special knowledge in this regard, was insufficient for this purpose. At this stage of the action, there are ques[62]*62tions of fact as to whether defendant’s conduct contributed to the happening of the accident. Concur — Sullivan, J. P., Ellerin, Ross and Rubin, JJ.

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—Order, Supreme Court, New York County (Eugene Nardelli, J.), entered October 30, 1992, which, inter alia, denied the motion of defendant York Scaffold & Equipment Corp. (York) for summary judgment dismissing the complaint against it pursuant to CPLR 3212, unanimously affirmed, without costs.

Plaintiff alleges that she was injured on January 3, 1989, when she tripped and fell on a cracked and otherwise defective sidewalk on West 22nd Street between Sixth and Seventh Avenues. In moving for summary judgment, defendant York, which had erected a sidewalk bridge over the area for the protection of pedestrians during construction on the premises, argued that it was not responsible for maintaining the sidewalk, nor had it created or contributed to any crack in the sidewalk or other defect which caused plaintiff’s fall.

Among other things, however, defendant has not established a prima facie case that the weight of the bridge, and its long presence on the site, could not have caused the sidewalk to crack or shift in some manner. The affidavit of defendant-appellant’s vice president, who was not shown to have any expertise or special knowledge in this regard, was insufficient for this purpose. At this stage of the action, there are ques[62]*62tions of fact as to whether defendant’s conduct contributed to the happening of the accident. Concur — Sullivan, J. P., Ellerin, Ross and Rubin, JJ.

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Bluebook (online)

198 A.D.2d 61, 603 N.Y.S.2d 151, 1993 N.Y. App. Div. LEXIS 10479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bivona-v-city-of-new-york-nyappdiv-1993.