Stolzman v. City of New York

Appellate Division of the Supreme Court of New York

Stolzman v. City of New York

2017 NY Slip Op 247, 146 A.D.3d 531, 43 N.Y.S.3d 903

Appellate Division of the Supreme Court of the State of New York·Decided January 12, 2017·No. 2734 112913/09·Published·Cited by 2 cases

Opinion

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered January 16, 2015, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Boulevard Housing Corp. (BHC) and Akam Associates, Inc. (Akam) for summary judgment dismissing the complaint as against them, and sua sponte dismissed the complaint as against the defaulting defendants Manhattan Community Board 7 and Cooper Square Realty Inc., unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated as against BHC, Akam, and the defaulting defendants.

BHC and Akam, the owner And property manager of the premises that abutted a sidewalk where plaintiff Alison Stolz-man tripped, established prima facie entitlement to summary judgment based on the testimony and photographic evidence indicating the alleged hazard was open and obvious and not inherently dangerous (see generally Boyd v New York City Hous. Auth., 105 AD3d 542 [1st Dept 2013]).

However, there remain triable issues as to whether the alleged low-lying tripping condition dangerously narrowed the passable area of the sidewalk and was adequately visible at night (see Nunez v Wah Kok Realty Corp., 110 AD3d 560 [1st Dept 2013]; Centeno v Regine’s Originals, 5 AD3d 210 [1st Dept 2004]; compare Barchi v Rudin E. 55th St. LLC, 144 AD3d 444 [1st Dept 2016]).

Concur — Sweeny, J.R, Renwick, Mazzarelli, Manzanet-Daniels and Feinman, JJ.

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Order, Supreme Court, New York County (Margaret A. Chan, J.), entered January 16, 2015, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Boulevard Housing Corp. (BHC) and Akam Associates, Inc. (Akam) for summary judgment dismissing the complaint as against them, and sua sponte dismissed the complaint as against the defaulting defendants Manhattan Community Board 7 and Cooper Square Realty Inc., unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated as against BHC, Akam, and the defaulting defendants.

BHC and Akam, the owner And property manager of the premises that abutted a sidewalk where plaintiff Alison Stolz-man tripped, established prima facie entitlement to summary judgment based on the testimony and photographic evidence indicating the alleged hazard was open and obvious and not inherently dangerous (see generally Boyd v New York City Hous. Auth., 105 AD3d 542 [1st Dept 2013]).

However, there remain triable issues as to whether the alleged low-lying tripping condition dangerously narrowed the passable area of the sidewalk and was adequately visible at night (see Nunez v Wah Kok Realty Corp., 110 AD3d 560 [1st Dept 2013]; Centeno v Regine’s Originals, 5 AD3d 210 [1st Dept 2004]; compare Barchi v Rudin E. 55th St. LLC, 144 AD3d 444 [1st Dept 2016]).

Concur — Sweeny, J.R, Renwick, Mazzarelli, Manzanet-Daniels and Feinman, JJ.

Stolzman v. City of New York, 2017 NY Slip Op 247, 146 A.D.3d 531, 43 N.Y.S.3d 903 (N.Y. Ct. App. 2017).

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Opinion

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