Capobianco v. MARI, JR.

• Decision Date: 22 May 2000
• Citation: Capobianco v. MARI, JR., 272 A.D.2d 497, 708 N.Y.S.2d 428 (N.Y. App. Div. 2000)
• Court: New York Supreme Court — Appellate Division
• Parties: ANNE D. CAPOBIANCO et al., Respondents,<BR>v.<BR>FRANK MARI, JR., et al., Respondents, and TOWN OF NORTH HEMPSTEAD, Appellant.

272 A.D.2d 497

708 N.Y.S.2d 428

ANNE D. CAPOBIANCO et al., Respondents,

v.FRANK MARI, JR., et al., Respondents, and TOWN OF NORTH HEMPSTEAD, Appellant.

05-22-2000

Joy, J. P., Goldstein, H. Miller and Schmidt, JJ., concur.

Ordered that the order is reversed, on the law, with one bill of costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the Town of North Hempstead, and the action against the remaining defendants is severed.

The plaintiff Anne D. Capobianco tripped on a defective sidewalk which had become raised and cracked due to a system of tree roots growing underneath it. The Town of North Hempstead repaired the sidewalk in 1988 or 1989. The plaintiffs submitted an affidavit from an expert stating that the repair had been "inadequate" to prevent recurrence of the dangerous condition. However, there is no evidence in the record that a dangerous condition existed when the...