Kaplan v. City of New York

Appellate Division of the Supreme Court of New York

Kaplan v. City of New York

237 A.D.2d 129, 655 N.Y.S.2d 349, 1997 N.Y. App. Div. LEXIS 2207

Appellate Division of the Supreme Court of the State of New York·Decided March 6, 1997·Published

Opinion

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about May 16, 1996, which denied defendant commercial tenant’s motion for summary judgment dismissing the complaint and cross claims as against it, unanimously affirmed, with one bill of costs.

Issues of fact exist as to whether defendant discharged grease into the building’s sewer system thereby causing an obstruction that caused an overflow of waste water through the fresh air vent onto the sidewalk that, upon freezing, caused plaintiffs fall. Defendant’s claims of lack of notice of the condition and of the inapplicability of the recurrent condition theory are improperly raised for the first time on appeal; in any event, upon the present record, defendant does not conclusively negate knowledge that its operation of a grease-generating restaurant was causing recurring problems with the building’s sewage system (see, Scott v Board of Educ., 193 AD2d 489). Concur—Sullivan, J. P., Rosenberger, Tom and Andrias, JJ.

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Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about May 16, 1996, which denied defendant commercial tenant’s motion for summary judgment dismissing the complaint and cross claims as against it, unanimously affirmed, with one bill of costs.

Issues of fact exist as to whether defendant discharged grease into the building’s sewer system thereby causing an obstruction that caused an overflow of waste water through the fresh air vent onto the sidewalk that, upon freezing, caused plaintiffs fall. Defendant’s claims of lack of notice of the condition and of the inapplicability of the recurrent condition theory are improperly raised for the first time on appeal; in any event, upon the present record, defendant does not conclusively negate knowledge that its operation of a grease-generating restaurant was causing recurring problems with the building’s sewage system (see, Scott v Board of Educ., 193 AD2d 489). Concur—Sullivan, J. P., Rosenberger, Tom and Andrias, JJ.

Kaplan v. City of New York, 237 A.D.2d 129, 655 N.Y.S.2d 349, 1997 N.Y. App. Div. LEXIS 2207 (N.Y. Ct. App. 1997).

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237 A.D.2d 129 (Kaplan v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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