Cruz v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Cruz v. New York City Housing Authority

62 A.D.3d 643, 879 N.Y.S.2d 483

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

DecidedMay 5, 2009

StatusPublished

Cited by2 cases

This text of 62 A.D.3d 643 (Cruz v. New York City Housing Authority) 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

Cruz v. New York City Housing Authority, 62 A.D.3d 643, 879 N.Y.S.2d 483 (N.Y. Ct. App. 2009).

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Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated January 31, 2008, which denied, as untimely, its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

“A motion on notice is made when a notice of the motion . . . is served” (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2006]; Russo v Eveco Dev. Corp., 256 AD2d 566 [1998]). In accordance with this rule, the defendant’s motion for summary judgment was made on June 29, 2007 when the motion was served, by mail, on the attorney for the plaintiff, and thus was timely (see CPLR 2103 [b] [2]; 3212; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2006]). As to the merits, the defendant submitted evidence sufficient to establish, prima facie, that the height differential between the bathroom door saddle over which the plaintiff allegedly tripped and the adjacent floor was slight and trivial and, therefore, not actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; Shiles v Carillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d 746 [2008]; Ayala v Gutin, 49 AD3d 677 [2008]; Hargrove v Baltic Estates, 278 AD2d 278 [2000]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. Contrary to the contention of the plaintiffs expert, the Administrative Code of the City of New York § 27-371 (h) does not apply to this case since the bathroom door saddle at issue merely separated two interior spaces within the plaintiffs apartment (see Administrative Code of City of NY § 27-232). Mastro, J.E, Dillon, Leventhal and Chambers, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated January 31, 2008, which denied, as untimely, its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

“A motion on notice is made when a notice of the motion . . . is served” (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2006]; Russo v Eveco Dev. Corp., 256 AD2d 566 [1998]). In accordance with this rule, the defendant’s motion for summary judgment was made on June 29, 2007 when the motion was served, by mail, on the attorney for the plaintiff, and thus was timely (see CPLR 2103 [b] [2]; 3212; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2006]). As to the merits, the defendant submitted evidence sufficient to establish, prima facie, that the height differential between the bathroom door saddle over which the plaintiff allegedly tripped and the adjacent floor was slight and trivial and, therefore, not actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; Shiles v Carillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d 746 [2008]; Ayala v Gutin, 49 AD3d 677 [2008]; Hargrove v Baltic Estates, 278 AD2d 278 [2000]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. Contrary to the contention of the plaintiffs expert, the Administrative Code of the City of New York § 27-371 (h) does not apply to this case since the bathroom door saddle at issue merely separated two interior spaces within the plaintiffs apartment (see Administrative Code of City of NY § 27-232). Mastro, J.E, Dillon, Leventhal and Chambers, JJ., concur.

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Bluebook (online)

62 A.D.3d 643, 879 N.Y.S.2d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cruz-v-new-york-city-housing-authority-nyappdiv-2009.

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