Nembhard v. Mount Vernon City School District Board of Education

300 A.D.2d 456, 750 N.Y.S.2d 880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered January 24, 2002, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly was injured when she slipped and fell on an icy staircase at a school operated by the defendant. The Supreme Court denied the defendant’s motion for summary judgment dismissing the complaint. We affirm.

In opposition to the defendant’s prima facie demonstration of entitlement to judgment as a matter of law, the plaintiff raised triable issues of fact regarding whether the remedial measures undertaken by the defendant were reasonable and appropriate under all of the circumstances and whether the defendant either created the allegedly dangerous condition or increased the hazard already present (see Booth v City of New York, 272 AD2d 357; Kennedy v C & C New Main St. Corp., 269 AD2d 499; LoSquadro v Roman Catholic Archdiocese of Brooklyn, 253 AD2d 856). Contrary to the defendant’s contention, the plaintiffs affidavit in opposition to its motion did not present feigned factual issues designed to avoid the consequences of her earlier statements (cf. Marcelle v New York City Tr. Auth., 289 AD2d 459; Nieves v ISS Cleaning Servs. Group, 284 AD2d 441). Thus, the affidavit was sufficient to demonstrate the existence of triable issues of fact. Accordingly, the defendant’s motion was properly denied. Ritter, J.P., Friedmann, H. Miller and Cozier, JJ., concur.