Tannenbaum v. City of New York , 690 N.Y.S.2d 431 ( 1999 )

—Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about April 28, 1998, which denied defendant-appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Summary judgment was properly denied since triable issues of fact exist as to whether plaintiff’s decedent tripped and fell on defendant New York University’s property or on the adjoining public sidewalk and, if the latter, as to whether New York University had special use of the sidewalk. Defendant’s contention that it will be impossible to ascertain the location of the accident except by conjecture and surmise is without merit since plaintiff’s decedent repeatedly and consistently described the location of the accident in the complaint and pleadings. Using that description, it should be possible at trial to determine which of the defendants had ownership and/or use of the area where the accident occurred. The denial of summary judgment was also appropriate in light of defendant-appellant’s failure to comply with all of plaintiff’s discovery requests (see, Caturano v City of New York, 224 AD2d 202). Concur — Rosenberger, J. P., Mazzarelli, Rubin, Saxe and Buckley, JJ.