Strauss v. City of New York

261 A.D.2d 532, 687 N.Y.S.2d 910, 1999 N.Y. App. Div. LEXIS 5447

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated February 1, 1996, as denied their motion, inter alia, to strike the answer of the defendant City of New York and granted that branch of the cross motion of the defendant City of New York which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendant AJI Dedona Construction Corp. separately appeals, as limited by its brief, from so much of the same order as granted that branch of the cross motion of the defendant City of New York which was for summary judgment dismissing the cross claims asserted against it.

Ordered, that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendant City of New York by the appellants appearing separately and filing separate briefs.

The deposition testimony of Edwin Maher, an employee of the Department of Parks and Recreation of the City of New York, established, prima facie, the absence of notice to the City as a matter of law (see, Goldman v Waldbaum, Inc., 248 AD2d 436), and that the City had not created the alleged hazard.

Neither of the appellants raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the City of New York had notice of, or created, the alleged hazard. O’Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.