Moscato v. City of New York

Appellate Division of the Supreme Court of New York

Moscato v. City of New York

16 A.D.3d 470, 792 N.Y.S.2d 104, 2005 N.Y. App. Div. LEXIS 2584

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

DecidedMarch 14, 2005

StatusPublished

Cited by4 cases

This text of 16 A.D.3d 470 (Moscato v. City of New York) 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.

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Moscato v. City of New York, 16 A.D.3d 470, 792 N.Y.S.2d 104, 2005 N.Y. App. Div. LEXIS 2584 (N.Y. Ct. App. 2005).

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Opinion

. In an action to recover damages for personal injuries, etc., the defendants Antonio Urgese and Maria Urgese appeal from so much of an order of the Supreme Court, Queens County (Flug, J.), dated December 8, 2003, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellants, homeowners whose property abutted a public sidewalk, failed to make a prima facie showing that they did not create the allegedly defective condition through an affirmative act of negligence or through a special use of the sidewalk (see Hausser v Giunta, 88 NY2d 449 [1996]; Rene v Union Gardens Coop., Section 1, 299 AD2d 471, 472 [2002]; Dos Santos v Peixoto, 293 AD2d 566 [2002]; cf. Kaufman v Silver, 90 NY2d 204, 207 [471]*471[1997]; Romero v City of New York, 5 AD3d 657 [2004]; Jeanty v Benin, 1 AD3d 566, 567 [2003]; Ivanyushkina v City of New York, 300 AD2d 544 [2002]; Benenati v City of New York, 282 AD2d 418, 419 [2001]). Accordingly, their motion was properly denied, regardless of the sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The appellants’ remaining contentions are without merit. H. Miller, J.P., Crane, Spolzino and Fisher, JJ., concur.

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. In an action to recover damages for personal injuries, etc., the defendants Antonio Urgese and Maria Urgese appeal from so much of an order of the Supreme Court, Queens County (Flug, J.), dated December 8, 2003, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellants, homeowners whose property abutted a public sidewalk, failed to make a prima facie showing that they did not create the allegedly defective condition through an affirmative act of negligence or through a special use of the sidewalk (see Hausser v Giunta, 88 NY2d 449 [1996]; Rene v Union Gardens Coop., Section 1, 299 AD2d 471, 472 [2002]; Dos Santos v Peixoto, 293 AD2d 566 [2002]; cf. Kaufman v Silver, 90 NY2d 204, 207 [471]*471[1997]; Romero v City of New York, 5 AD3d 657 [2004]; Jeanty v Benin, 1 AD3d 566, 567 [2003]; Ivanyushkina v City of New York, 300 AD2d 544 [2002]; Benenati v City of New York, 282 AD2d 418, 419 [2001]). Accordingly, their motion was properly denied, regardless of the sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The appellants’ remaining contentions are without merit. H. Miller, J.P., Crane, Spolzino and Fisher, JJ., concur.

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16 A.D.3d 470, 792 N.Y.S.2d 104, 2005 N.Y. App. Div. LEXIS 2584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moscato-v-city-of-new-york-nyappdiv-2005.

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