Cohen v. Tuneway Co.

Appellate Division of the Supreme Court of New York

Cohen v. Tuneway Co.

35 A.D.3d 340, 825 N.Y.S.2d 268

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

DecidedDecember 5, 2006

StatusPublished

Cited by2 cases

This text of 35 A.D.3d 340 (Cohen v. Tuneway Co.) 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

Cohen v. Tuneway Co., 35 A.D.3d 340, 825 N.Y.S.2d 268 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Martin, J.), dated November 18, 2005, which granted the motion of the defendants Tuneway Company, Barry Berk-man, Andrew Berkman, Deborah Berkman, Alice Berkman, and the Ingraham Bedell Corporation for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint insofar as asserted against the defendants Tuneway Company, Barry Berkman, Andrew Berkman, Deborah Berkman, Alice Berkman, and the Ingraham Bedell Corporation is denied.

The injured plaintiff alleged that as she was walking in the defendants’ parking lot she fell due to a sinkhole in the asphalt walkway. The Supreme Court granted the motion of the defendants Tuneway Company, Barry Berkman, Andrew Berk-man, Deborah Berkman, Alice Berkman, and the Ingraham Bedell Corporation for summary judgment dismissing the complaint insofar as asserted against them on the ground that [341]*341there was no evidence of actual or constructive notice of the alleged defect. We reverse.

In opposition to the movants’ prima facie showing of entitlement to judgment as a matter of law on the issue of notice, the plaintiffs raised a triable issue of fact by submitting photographs of the accident scene, an expert affidavit, and the deposition testimony of the parties, from which a jury could find that the defendants had constructive notice of the allegedly dangerous condition (see Morgan v Chong Kwan Jun, 30 AD3d 386, 388 [2006]; Williams v Long Is. R.R., 29 AD3d 900 [2006]; DeGruccio v 863 Jericho Turnpike Corp., 1 AD3d 472 [2003]). Moreover, the photographs of the accident site were insufficient to demonstrate as a matter of law that the sinkhole condition was too trivial to be actionable (see Corrado v City of New York, 6 AD3d 380 [2004]; Sanna v Wal-Mart Stores, 271 AD2d 595 [2000]). Prudenti, P.J., Schmidt, Dillon and Covello, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Martin, J.), dated November 18, 2005, which granted the motion of the defendants Tuneway Company, Barry Berk-man, Andrew Berkman, Deborah Berkman, Alice Berkman, and the Ingraham Bedell Corporation for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint insofar as asserted against the defendants Tuneway Company, Barry Berkman, Andrew Berkman, Deborah Berkman, Alice Berkman, and the Ingraham Bedell Corporation is denied.

The injured plaintiff alleged that as she was walking in the defendants’ parking lot she fell due to a sinkhole in the asphalt walkway. The Supreme Court granted the motion of the defendants Tuneway Company, Barry Berkman, Andrew Berk-man, Deborah Berkman, Alice Berkman, and the Ingraham Bedell Corporation for summary judgment dismissing the complaint insofar as asserted against them on the ground that [341]*341there was no evidence of actual or constructive notice of the alleged defect. We reverse.

In opposition to the movants’ prima facie showing of entitlement to judgment as a matter of law on the issue of notice, the plaintiffs raised a triable issue of fact by submitting photographs of the accident scene, an expert affidavit, and the deposition testimony of the parties, from which a jury could find that the defendants had constructive notice of the allegedly dangerous condition (see Morgan v Chong Kwan Jun, 30 AD3d 386, 388 [2006]; Williams v Long Is. R.R., 29 AD3d 900 [2006]; DeGruccio v 863 Jericho Turnpike Corp., 1 AD3d 472 [2003]). Moreover, the photographs of the accident site were insufficient to demonstrate as a matter of law that the sinkhole condition was too trivial to be actionable (see Corrado v City of New York, 6 AD3d 380 [2004]; Sanna v Wal-Mart Stores, 271 AD2d 595 [2000]). Prudenti, P.J., Schmidt, Dillon and Covello, JJ., concur.

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Bluebook (online)

35 A.D.3d 340, 825 N.Y.S.2d 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-tuneway-co-nyappdiv-2006.

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