Bernstein v. City of New York , 684 N.Y.S.2d 206 ( 1999 )

—Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered December 9, 1997, which, in an action for personal injuries allegedly caused by a defective sidewalk, denied defendant-appellant abutting property owner’s motion for summary judgment dismissing the complaint and any cross claims as against it, and order, same court and Justice, entered March 19, 1998, which, insofar as appeal-able, denied appellant’s motion to renew, unanimously affirmed, without costs.

An issue of fact exists as to whether appellant created the defective sidewalk, raised by evidence that demolition work was performed on the property, and that the only gate through the chain link fence surrounding the demolition site was in front of the sidewalk where plaintiff fell. We note, as did the motion court, that the type of equipment used at the site, and how it was brought there, are facts exclusively within appellant’s knowledge. Concur — Sullivan, J. P., Nardelli, Rubin and Mazzarelli, JJ.