Aller v. City of N.Y.
| Decision Date | 27 April 2010 |
| Citation | 72 A.D.3d 563,900 N.Y.S.2d 41 |
| Parties | Nelida ALLER, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant, Michael S. Appelbaum, et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
72 A.D.3d 563
Nelida ALLER, Plaintiff-Appellant,
v.
The CITY OF NEW YORK, Defendant,
Michael S. Appelbaum, et al., Defendants-Respondents.
Supreme Court, Appellate Division, First Department, New York.
April 27, 2010.
Subin Associates LLP, New York (Brooke Lombardi of counsel), for appellant.
Hoey, King, Toker & Epstein, New York (Robert O. Pritchard of counsel), for Michael S. Appelbaum, respondent.
Michelle S. Russo, Pt. Washington, for George Heinrich, respondent.
Morris Duffy Alonso & Faley, New York (Anna J. Ervolina and Andrea M. Alonso of counsel), for Feroma Contracting Inc., respondent.
Faust Goetz Schenker & Blee LLP, New York (Christopher B. Kinzel of counsel), for C & E Plaster & Construction Co. Inc., respondent.
GONZALEZ, P.J., TOM, FRIEDMAN, McGUIRE, ABDUS-SALAAM, JJ.
Order, Supreme Court, New York County (Matthew F. Cooper,
J.), entered November 24, 2008, which granted motions by defendants Appelbaum, Heinrich, Feroma and C & E for summary judgment dismissing the complaint and all cross claims as against them, respectively, unanimously modified, on the law, to deny the motions of defendants Appelbaum and Heinrich, and otherwise affirmed, without costs.The court erred in finding plaintiff's deposition testimony to have been unduly speculative with respect to the location and cause of her injury since she clearly testified that she fell due to "unlevel" ground in the middle of the sidewalk between two buildings. This was consistent with the photographic evidence showing an uneven sidewalk at the location of the accident ( see Soto v. Lime Tree Gourmet Deli, 18 A.D.3d 284, 795 N.Y.S.2d 30 [2005]; Herrera v. City of New York, 262 A.D.2d 120, 691 N.Y.S.2d 504 [1999] ). The inconsistencies in plaintiff's testimony relied on by defendants raise credibility issues that should be resolved by a jury. Although defendant Heinrich maintains that the alleged defect is not on his property, the record does not disclose the location of the property line. The evidence is therefore insufficient to establish that his property was free of defects ( see Soto, 18 A.D.3d at 285, 795 N.Y.S.2d 30).
The claims against defendants Feroma Contracting, Inc. and C & E Plaster & Construction Co., however, were properly dismissed. The evidence demonstrated that Feroma performed only interior work at Appelbaum's residence and that C & E satisfactorily completed the sidewalk replacement in front of Appelbaum's...
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