Witherspoon v. Thomas

Appellate Division of the Supreme Court of New York

Witherspoon v. Thomas

281 A.D.2d 540, 721 N.Y.S.2d 804, 2001 N.Y. App. Div. LEXIS 2583

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

DecidedMarch 19, 2001

StatusPublished

This text of 281 A.D.2d 540 (Witherspoon v. Thomas) 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

Witherspoon v. Thomas, 281 A.D.2d 540, 721 N.Y.S.2d 804, 2001 N.Y. App. Div. LEXIS 2583 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injuries, the defendants Theodore Thomas and Antigone Thomas appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated January 7, 2000, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents, the motion is granted, the complaint and all cross claims insofar as asserted against the appellants are dismissed, and the action against the remaining defendants is severed.

The appellants established their prima facie entitlement to summary judgment dismissing the complaint and all cross claims insofar as asserted against them. In opposition, the respondents failed to raise a triable issue of fact as to whether the appellants made an alleged repair to the sidewalk (see, [541]*541Lobel v Rodco Petroleum Corp., 233 AD2d 369; Padawer v City of New York, 269 AD2d 509; Kuller v Potashner, 268 AD2d 563; Davi v Alhamidy, 207 AD2d 859). The contention that the sidewalk was repaired was purely speculative (cf., Kozma v Biberfeld, 264 AD2d 817). Therefore, the motion should have been granted. Bracken, P. J., S. Miller, McGinity and Schmidt, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants Theodore Thomas and Antigone Thomas appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated January 7, 2000, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents, the motion is granted, the complaint and all cross claims insofar as asserted against the appellants are dismissed, and the action against the remaining defendants is severed.

The appellants established their prima facie entitlement to summary judgment dismissing the complaint and all cross claims insofar as asserted against them. In opposition, the respondents failed to raise a triable issue of fact as to whether the appellants made an alleged repair to the sidewalk (see, [541]*541Lobel v Rodco Petroleum Corp., 233 AD2d 369; Padawer v City of New York, 269 AD2d 509; Kuller v Potashner, 268 AD2d 563; Davi v Alhamidy, 207 AD2d 859). The contention that the sidewalk was repaired was purely speculative (cf., Kozma v Biberfeld, 264 AD2d 817). Therefore, the motion should have been granted. Bracken, P. J., S. Miller, McGinity and Schmidt, JJ., concur.

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Bluebook (online)

281 A.D.2d 540, 721 N.Y.S.2d 804, 2001 N.Y. App. Div. LEXIS 2583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witherspoon-v-thomas-nyappdiv-2001.

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