Sternbach v. Cornell University
| Decision Date | 28 June 1990 |
| Citation | 162 A.D.2d 922,558 N.Y.S.2d 252 |
| Parties | , 61 Ed. Law Rep. 1068 Annette STERNBACH, et al., Respondents, v. CORNELL UNIVERSITY, et al., Respondents, and A.J. Eckert Company, Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Pemberton & Briggs (Paul Briggs, of counsel), Schenectady, for appellant.
William M. Weegar (Michael G. Donnelly, of counsel), Syracuse, for McGuire & Bennett, Inc., respondent.
Before KANE, J.P., and WEISS, LEVINE, MERCURE and HARVEY, JJ.
Appeal from an order of the Supreme Court (Ryan, Jr., J.), entered November 20, 1989 in Schenectady County, which denied defendant A.J. Eckert Company Inc.'s motion for summary judgment dismissing the complaint and all cross claims against it.
This action was commenced by plaintiff Annette Sternbach (hereinafter plaintiff) to recover for injuries she allegedly sustained when her left foot went into a hole or depression on a sidewalk on College Avenue in the City of Ithaca, Tompkins County, and she fell. Immediately adjacent to the sidewalk was a construction fence placed there for the purpose of cordoning off a construction project being performed for defendant Cornell University. Defendant McGuire & Bennett, Inc. (hereinafter McGuire) was the general contractor for the project and it contracted with defendant A.J. Eckert Company, Inc. (hereinafter Eckert), a plumbing subcontractor. Eckert was hired to relocate a water line which traversed the sidewalk in the area where plaintiff fell. That work required a portion of the sidewalk to be removed and the earth below excavated. When the work on the line was completed, Eckert refilled the area and repaved the sidewalk. The project was completed approximately two months before plaintiff's accident.
In her complaint, as amplified by her bill of particulars, plaintiff principally alleges that the construction performed on the sidewalk by Eckert was performed negligently and created a dangerous and defective condition. Following joinder of issue, Eckert moved for summary judgment dismissing the complaint and all cross claims against it. Supreme Court denied the motion and this appeal ensued.
We affirm. Summary judgment is a drastic remedy and "should not be granted where there is any doubt as to the existence of a triable issue" (Moskowitz v. Garlock, 23 A.D.2d 943, 944, 259 N.Y.S.2d 1003; see, Munzer v. St. Paul Fire & Marine Ins. Co., 145 A.D.2d 193, 197, 538 N.Y.S.2d 633). Accordingly, the focus of the court must be on issue identification rather than issue determination (see, Cunningham v. General Elec. Credit Corp., 96 A.D.2d 502, 464...
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...any doubt as to the existence of a triable issue. (Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 [2012] ; Sternbach v. Cornell Univ., 162 A.D.2d 922, 923, 558 N.Y.S.2d 252 [3d Dept 1990].) “[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light m......
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...in several New York cases, including Colonno v Executive I Assocs. (228 A.D.2d 859), Marrero v Marsico (218 A.D.2d 226), Sternbach v Cornell Univ. (162 A.D.2d 922), Roberts v MacFarland Constr. Cos. (102 A.D.2d 981) and Cubito v Kreisberg (69 A.D.2d 738, affd 51 N.Y.2d 900). Notably, the "m......
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... ... Clower , 356 P.2d 46 ... (N.M. 1960); New York, Sternbach v. Cornell ... University , 558 N.Y.S.2d 252 (N.Y.A.D., 3 Dept. 1990); ... Rhode ... ...
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Jubic v. City of Troy City Corp.
...a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue (Sternbach v. Cornell University, 162 A.D.2d 922, 923, 558 N.Y.S.2d 252 [Third Dept., 1990]. The focus should be on issue identification rather than issue determination (Sternbach v.......