Saxton v. City of New York

In an action to recover damages for personal injuries, the defendant H.H.M. Associates, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 13, 2004, as, upon re-argument, adhered to a prior determination in an order dated March 3, 2003, denying its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order dated September 13, 2004 is affirmed insofar as appealed from, with costs. The Supreme Court, upon reargument, properly adhered to its prior determination denying the motion of the defendant H.H.M. Associates, Inc. (hereinafter HHM), for summary judgment dismissing the complaint insofar as asserted against it. There remains a triable issue of fact as to whether or not HHM created the alleged defect that caused the plaintiffs accident (see Padula v City of Long Beach, 20 AD3d 555, 556 [2005]; Cucuzza v City of New York, 2 AD3d 389, 390 [2003]; Maggio v City of New York, 305 AD2d 554, 555 [2003]; Gerena v Town of Brookhaven, 280 AD2d 450 [2001]; cf. Tsviling v City of New York, 275 AD2d 367 [2000]). Accordingly, HHM was not entitled to summary judgment dismissing the complaint insofar as asserted against it (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Schmidt, J.P., Santucci, Rivera and Skelos, JJ., concur.