Chapman v. City of New York , 30 N.Y.S.3d 542 ( 2016 )

Chapman v City of New York (2016 NY Slip Op 03824)

Chapman v City of New York

2016 NY Slip Op 03824

Decided on May 17, 2016

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 May 17, 2016
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.

1150 103882/10

[*1]Luz Chapman, Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent.

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

Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for respondent.

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered October 16, 2014, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff's notice of claim and complaint, as amplified by her bill of particulars, made clear that she was alleging that there were at least two separate dangerous conditions that caused or contributed to her fall, namely, the presence of a dirty, dark, somewhat dry liquid on the stairs and the defective condition of the stairs themselves, which plaintiff alleges were worn, uneven and slippery. Defendant's motion addressed the former condition but not the latter, thereby failing to

demonstrate its entitlement to judgment as a matter of law (see e.g. Breitman v Dennett, 77 AD3d 498 [1st Dept 2010]; Miller v Village of E. Hampton, 98 AD3d 1007, 1008-1009 [2d Dept 2012]).

In view of defendant's failure to meet its initial burden, it is unnecessary to address the sufficiency of plaintiff's opposition to the motion (see Simantov v Kipps Taxi, Inc., 68 AD3d 661 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 17, 2016

CLERK