Longo v. American Golf Corp.

256 A.D.2d 387, 681 N.Y.S.2d 589, 1998 N.Y. App. Div. LEXIS 13438

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kangs County (Hutcherson, J.), dated October 29, 1997, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is modified by deleting the provision thereof granting that branch of the motion which was to dismiss the complaint insofar as asserted against the defendant American Golf Corporation, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements, and the action against the defendant American Golf Corporation is severed.

The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant City of New York, as the plaintiffs failed to plead and prove compliance with Administrative Code of the City of New York § 7-201 (c) (2) (see, Solone v City of New York, 238 AD2d 332; Acevedo v City of New York, 128 AD2d 488).

The Supreme Court erred, however, when it granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant American Golf Corporation, as there exist triable issues of fact as to whether that defendant negligently performed its duties to maintain and repair the cart path upon which the plaintiff was injured (see, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Drennen v City of New York, 256 AD2d 379 [decided herewith]; Pasquerella v Estey Corp., 249 AD2d 456). O’Brien, J. P., Sullivan, Pizzuto and Florio, JJ., concur.