Mesecher v. Town of Huntington

— Motion by appellant for reargument, or, in the alternative, for leave to appeal from an order of this court dated May 14, 1984, which affirmed, without opinion, (1) an order of the Supreme Court, Suffolk County (Rohl, J.), dated December 29, 1982, and (2) an order of the same court (Mclnerney, J.), dated May 31, 1983.

Motion granted to the extent that the decision and order of this court, both dated May 14, 1984, are recalled and vacated, and the following decision is substituted therefor:

In an action to recover damages for personal injuries, etc., defendant appeals from (1) an order of the Supreme Court, Suffolk County (Rohl, J.), dated December 29, 1982, which denied its motion to dismiss the complaint, and (2) a further order of the same court (Mclnerney, J.), dated May 31, 1983, which denied its motion for summary judgment.

Orders affirmed, with one bill of costs.

The existence of a triable issue of fact regarding plaintiffs’ allegation that the defendant town had affirmatively caused Rose Mesecher’s injury by “caus[ing] the sidewalk to contain a raised slab” precludes the dismissal of the underlying complaint at this stage of the proceedings (see Morgan v Town of North Hempstead, 43 AD2d 591; Muszynski v City of Buffalo, 33 AD2d 648, affd 29 NY2d 810; Appelbaum v City of Long Beach, 8 AD2d 818; see, also, Lytwyn v Town of Wawarsing, 43 AD2d 618). Lazer, J. P., Gibbons, Bracken and Lawrence, JJ., concur.