Ostrowski v. Massa

168 A.D.2d 964

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1990
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Plaintiff, Charles Ostrowski, seeks damages for personal injuries that he allegedly sustained when a portion of the concrete back porch collapsed at premises that he rented from defendant. Testimony at an examination before trial revealed that, approximately one year prior to the accident, defendant performed work, using a jackhammer, on concrete steps immediately adjacent to the porch. Plaintiff contends that this repair work, under the circumstances, weakened the stability of the porch. Defendant failed to tender evidence in admissible form demonstrating that the use of the jackhammer did not affect the structural integrity of the porch. Defendant, therefore, has failed to establish his defense "sufficiently to warrant the court as a matter of law in directing judgment in [his] favor” (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557). In view of our determination, we do not address defendant’s remaining contentions. (Appeal from order of Supreme Court, Ontario County, Harvey, J.—summary judgment.) Present—Denman, J. P., Boomer, Pine, Balio and Davis, JJ.