Opinion
2012-02-7
Raymin CABRERA, et al., Plaintiffs–Respondents, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants–Appellants,Temco Service Industries, Inc., Defendant.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellants. Seligson, Rothman & Rothman, New York (Martin S. Rothman of counsel), for respondents.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellants. Seligson, Rothman & Rothman, New York (Martin S. Rothman of counsel), for respondents.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 6, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion as to defendant City of New York, and otherwise affirmed, without costs.
Defendant Department of Education (DOE) is not entitled to summary judgment because there is sufficient evidence in the record to raise a question of fact as to whether it knew of a recurring dangerous condition in the fence and routinely left it unaddressed ( see Uhlich v. Canada Dry Bottling Co. of N.Y., 305 A.D.2d 107, 758 N.Y.S.2d 650 [2003] ) or whether it undertook repairs and performed them negligently ( see e.g. Grossman v. Amalgamated Hous. Corp., 298 A.D.2d 224, 226–227, 750 N.Y.S.2d 1 [2002] ).
The City is not a proper party to this action ( see Bailey v. City of New York, 55 A.D.3d 426, 866 N.Y.S.2d 66 [2008] ).