Mathisson v. City of New York

304 A.D.2d 802, 757 N.Y.S.2d 867, 2003 N.Y. App. Div. LEXIS 4533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant Mohawk Milling and Sweeping Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated March 21, 2002, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendants the City of New York, the City of New York Department of Transportation, and the City of New York Department of Highways cross-appeal from the same order.

Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondents.

The injured plaintiff and his wife commenced the instant action after the vehicle the injured plaintiff was operating struck two raised manholes on a roadway which was under construction.

Mohawk Milling and Sweeping Corporation (hereinafter Mohawk) established its prima facie entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In opposition, the plaintiffs raised issues of fact as to whether Mohawk caused or created a dangerous condition and, if so, whether it was a proximate cause of the accident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the Supreme Court properly denied its motion for summary judgment. Feuerstein, J.P., Smith, H. Miller and Townes, JJ., concur.