Opinion
10069 Index 307433/13
10-10-2019
Luis SANCHEZ, Plaintiff–Respondent, v. CITY OF NEW YORK, Defendant–Appellant, South Bronx Revitalization, Inc., Defendant.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), appellant. Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), appellant.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about July 12, 2018, which, inter alia, denied defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
The City failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when he tripped and fell on a defect in the sidewalk.
The evidence submitted by the City fails to definitively show that it had no prior written notice of the defect that caused plaintiff's fall (see Sondervan v. City of New York, 84 A.D.3d 625, 924 N.Y.S.2d 54 [1st Dept. 2011] ). Even if we found that the City met its prima facie burden, plaintiff raised a triable issue of fact as to whether the City had prior written notice of the defective condition through the affidavit of his expert, and of the Big Apple Map, showing an area of "[r]aised or uneven portion of sidewalk" in the vicinity of the fall. Contrary to the City's argument, the Big Apple Map does not provide any information as to the length or distance of a defect and thus, the defect depicted in the Map may extend to where plaintiff was injured (see Foley v. City of New York, 151 A.D.3d 431, 433, 57 N.Y.S.3d 464 [1st Dept. 2017] ). Factual issues as to the precise location of the defect and whether the defect is designated on the map should be resolved by a jury (see id. ; Hennessey–Diaz v. City of New York, 146 A.D.3d 419, 44 N.Y.S.3d 404 [1st Dept. 2017] ; Mora v. City of New York, 103 A.D.3d 610, 959 N.Y.S.2d 264 [2d Dept. 2013] ).
We have considered the City's remaining arguments and find them unavailing.