Schwartz v. Empire City Subway Co.

Appellate Division of the Supreme Court of New York

Schwartz v. Empire City Subway Co.

106 A.D.3d 464, 965 N.Y.S.2d 868

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

DecidedMay 9, 2013

StatusPublished

This text of 106 A.D.3d 464 (Schwartz v. Empire City Subway Co.) 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.

Bluebook

Schwartz v. Empire City Subway Co., 106 A.D.3d 464, 965 N.Y.S.2d 868 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered May 30, 2012, which granted defendant Empire City Subway Company’s motion for summary judgment dismissing the complaint as against it, and denied plaintiffs’ motion for summary judgment as to liability, unanimously affirmed, without costs.

In this personal injury action, plaintiff Bryan Schwartz alleges that he slipped and fell on a slippery manhole cover. Defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence of the lack of prior notice of any defective condition and its engineer’s affidavit attesting to the safe condition of the manhole cover (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).

[465]*465Although, in opposition to the motion, plaintiffs may have raised an issue of fact as to the existence of a defective condition, they failed to raise a triable issue of fact as to whether defendant had notice of the latent slippery condition of the manhole cover (see Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [1st Dept 2007], lv denied 9 NY3d 809 [2007]). Indeed, the cover’s slip-preventive lettering and pattern appeared visible upon inspection, as evidenced by photographs.

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur—Andrias, J.R, Saxe, Freedman and Román, JJ. [Prior Case History: 2012 NY Slip Op 31052(U).]

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Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered May 30, 2012, which granted defendant Empire City Subway Company’s motion for summary judgment dismissing the complaint as against it, and denied plaintiffs’ motion for summary judgment as to liability, unanimously affirmed, without costs.

In this personal injury action, plaintiff Bryan Schwartz alleges that he slipped and fell on a slippery manhole cover. Defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence of the lack of prior notice of any defective condition and its engineer’s affidavit attesting to the safe condition of the manhole cover (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).

[465]*465Although, in opposition to the motion, plaintiffs may have raised an issue of fact as to the existence of a defective condition, they failed to raise a triable issue of fact as to whether defendant had notice of the latent slippery condition of the manhole cover (see Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [1st Dept 2007], lv denied 9 NY3d 809 [2007]). Indeed, the cover’s slip-preventive lettering and pattern appeared visible upon inspection, as evidenced by photographs.

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur—Andrias, J.R, Saxe, Freedman and Román, JJ. [Prior Case History: 2012 NY Slip Op 31052(U).]

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Bluebook (online)

106 A.D.3d 464, 965 N.Y.S.2d 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-empire-city-subway-co-nyappdiv-2013.

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