Opinion
No. 2007-10198.
January 13, 2009.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated October 11, 2007, which denied its motion for summary judgment dismissing the complaint.
Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, Harris J. Zakarin, and Melissa M. Murphy of counsel), for appellant.
Stock Carr, Mineola, N.Y. (Victor A. Carr of counsel), for respondent.
Before: Skelos, J.P., Santucci, Dillon and Covello, JJ.
Ordered that the order is affirmed, with costs.
On the night of September 23, 2004 the plaintiff allegedly tripped and fell on an uneven surface in the Newbridge Road Park parking lot, located in the defendant Town of Hempstead, and fractured his right foot. As the plaintiff correctly concedes on appeal, the defendant established that it lacked prior written notice of a dangerous and defective condition at the subject location ( see Amabile v City of Buffalo, 93 NY2d 471, 474; Tuzzolo v Town of Hempstead, 292 AD2d 446). However, the plaintiff raised a triable issue of fact ( see CPLR 3212 [b]) as to whether the repair work which the defendant performed on the surface of the parking lot immediately resulted in the existence of the dangerous condition which caused the plaintiff to trip and fall ( see Oboler v City of New York, 8 NY3d 888, 889; Bohm v Town of Brookhaven, 43 AD3d 454, 456). Therefore, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.