Berenholz v. Lopez

In an action to recover damages for personal injuries, etc., the defendants appeal from an order [978] of the Supreme Court, Nassau County (McCarty, J.), dated November 4, 2004, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The injured plaintiff tripped over wooden planking which had been placed over the area between the curb abutting the roadway and the sidewalk abutting the defendants’ property. The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. We affirm. The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Portaro v Tillis Inv. Co., 304 AD2d 635 [2003]). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment. Florio, J.P., H. Miller, Ritter and Rivera, JJ., concur.