Green v. Central Island Nursing Home, Inc.

• Citation: 701 N.Y.S.2d 669
• Parties: 2000 N.Y. Slip Op. 763 Jimmy L. GREEN, et al., respondents, v. CENTRAL ISLAND NURSING HOME, INC., etc., et al., appellants.
• Decision Date: 24 January 2000
• Court: New York Supreme Court — Appellate Division

Page 669

701 N.Y.S.2d 669

2000 N.Y. Slip Op. 763

Jimmy L. GREEN, et al., respondents, v. CENTRAL ISLAND NURSING HOME, INC., etc., et al., appellants.

Supreme Court, Appellate Division,

Second Department, New York.

Jan. 24, 2000.

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, N.Y. (Robert D. Martin of counsel), for appellants.

Sackstein, Sackstein & Sackstein, LLP, Garden City, N.Y. (Andrew T. Cupit of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Carter, J.), entered December 3, 1998, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Whether a dangerous or defective condition exists on real property as to create liability "depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Guerrieri v. Summa, 193 A.D.2d 647, 598 N.Y.S.2d 4; Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489). After the defendants made out a prima facie case for summary judgment, the plaintiffs adduced sufficient evidence to raise issues of fact as to whether the alleged defect in the pavement was a proximate cause of the accident in which the plaintiff Jimmy L. Green was injured (see, Romano v. Westbury Prop. Inv. Co., 240 A.D.2d 388, 658 N.Y.S.2d 101; Baquero v. Youngs Mem. Cemetery, 248 A.D.2d 497, 669 N.Y.S.2d 887). There are also questions as to whether the defendants had actual or constructive notice of the alleged defect (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774; Romano v. Westbury Prop. Inv. Co., 240 A.D.2d 388, 658 N.Y.S.2d 101; Katsoris v. Waldbaum, Inc., 241 A.D.2d 511, 663 N.Y.S.2d 984), and whether the alleged defect was trivial (see, Trincere v. County of Suffolk, supra).

We reject the plaintiffs' contention that the imposition of sanctions is warranted (see, 22 NYCRR 130-1.1).

BRACKEN, J.P., THOMPSON, SULLIVAN, and KRAUSMAN, JJ., concur.