Smith v. 985 Amsterdam Avenue Housing Development Fund Corp.

82 A.D.3d 426, 917 N.Y.2d 858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 2011
• Status: Published

Opinion

Defendant met its initial burden of showing entitlement to summary judgment by submitting evidence in the form of a property survey and expert affidavit averring that the defective condition was located on an adjacent property. In opposition, plaintiff failed to raise an issue of fact concerning the location of the defective condition. The survey and the affidavit of the surveyor both identify the raised portion of the concrete slab upon which plaintiff claimed to have tripped as being on the property adjacent to defendant’s property. Further, plaintiff testified that he was walking north on Amsterdam Avenue, that his foot caught on a piece of concrete and that he tripped and fell in front of the barbershop. Elaintiff does not dispute that the barbershop is located at 983 Amsterdam Avenue, which is adjacent to and south of defendant’s property (see Balsam v Delma Eng’g Corp., 139 AD2d 292, 296-297 [1988], lv denied in part and dismissed in part 73 NY2d 783 [1988]). Concur — Saxe, J.E, Sweeny, Catterson, Freedman and Román, JJ.