Wimbush v. City of Albany , 727 N.Y.S.2d 745 ( 2001 )

Cardona, P. J.

(dissenting). I respectfully dissent. In my opinion, the evidence submitted by defendant Albany Housing Authority (hereinafter defendant) was insufficient to meet its initial burden on this motion for summary judgment (see, CPLR 3212 [b]). Specifically, the affidavit of the building manager responsible for maintaining the sidewalk where the accident occurred does not adequately set forth the condition of the sidewalk closer to the time of this occurrence. Notably, although the building manager affirmatively states that he inspected this area daily and describes what he observed on February 6, 1998, he does not mention what conditions, if any, he observed on February 7, 1998, despite the fact that plaintiffs accident occurred in the early morning hours of February 8, 1998. If, in fact, the building manager did not inspect the walkway on February 7, 1998 in accordance with the standard practice described in his affidavit, no explanation for the deviation is given. Furthermore, with respect to the building manager’s February 6, 1998 affidavit, he does not give the approximate time of day his inspection occurred and states only that he does not recall observing an “accumulation of ice.” He does not indicate whether, inter alia, any water from melting or patches of ice was observed. Given these deficiencies, defendant “has not established a prima facie entitlement to judgment” (Howard v J.A.J. Realty Enters., 283 AD2d 854, 856). Therefore, I would not dismiss the complaint against defendant as a matter of law. Ordered that the order is reversed, on the law, without costs, motion granted, summary judgment awarded to defendant Albany Housing Authority, and complaint dismissed against said defendant.