Lausell v. City of New York , 154 A.D.3d 586 ( 2017 )

Lausell v City of New York (2017 NY Slip Op 07407)

Lausell v City of New York

2017 NY Slip Op 07407

Decided on October 24, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 24, 2017
Renwick, J.P., Kapnick, Gesmer, Kern, JJ.

4785 309846/10

[*1]Jessica Lausell, Plaintiff-Appellant,

v

City of New York, et al., Defendants-Respondents.

Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for respondents.

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered July 20, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants sustained their initial burden through the testimony and affidavit of the building manager, plaintiff, the assistant principal, and plaintiff's daughter, as well as with the log book entries, which demonstrated that there was a path that was cleared of snow and ice at the crosswalk and on the sidewalk in front of the Marion Avenue entrance to the building; and that the building manager had inspected the area where plaintiff fell 80 minutes before her accident and it was free of snow and ice (see Herrera v E 103rd St & Lexington Ave Realty

Corp., 95 AD3d 463 [1st Dept 2012]).

The court properly found that plaintiff failed to raise a triable issue of fact concerning defendants' notice of the hazardous condition and as to defendants' negligence (see McKenzie v City of New York, 116 AD3d 526, 527 [1st Dept 2014]). Even if plaintiff's testimony that she did not climb over a mound of snow to access the sidewalk on Webster Avenue was accepted, despite the contrary testimony by the assistant principal and plaintiff's daughter, it was undisputed that plaintiff nevertheless elected to cross the street mid-block, wearing sneakers, and ignored the clear crosswalk and path on Marion Avenue (see Zayas v New York City Hous Auth, 115 AD3d 485 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 24, 2017

CLERK