Balbes v. City of New York , 946 N.Y.S.2d 153 ( 2012 )

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 18, 2011, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff sustained injuries when he tripped and fell while crossing within the crosswalk at an intersection. Deposition testimony, photographs of the roadbed where plaintiff fell, and Department of Transportation records, together with reasonable inferences drawn therefrom, present triable issues as to whether defendant created an immediate hazardous condition by performing milling and resurfacing work at the subject intersection at about the time of plaintiffs fall (see Yarborough v City of New York, 10 NY3d 726 [2008]).

The record also presents triable issues as to whether plaintiff had a reasonable opportunity to observe and avoid what defendant contends was an “open and obvious” condition that could not be deemed inherently dangerous. The record shows that plaintiffs trip and fall occurred at midnight, in an area of the intersection that purportedly lacked sufficient lighting, and while plaintiff was walking in the company of others and had his vision of the road ahead blocked by a friend who was walking in front of him. Although plaintiff was aware of the recent milling and stripping of the old road surface, factual issues exist as to whether the circumstances at the time, including the lighting conditions, permitted plaintiff to appreciate the degree of the depression hazard that was present (compare Baynes v City of New York, 81 AD3d 423 [2011]).

We have considered defendant’s remaining arguments and find them unavailing. Concur — Tom, J.P., Andrias, Moskowitz, Acosta and Abdus-Salaam, JJ.