Schimicci v. City of New York

In an action to recover damages for personal injuries, etc., the [688] defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated September 10, 2004, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The defendant made a prima facie showing of entitlement to judgment as a matter of law on the ground that it never received prior written notice of the alleged street defect at issue in this case. However, contrary to the defendant’s contention, the plaintiffs’ submissions in opposition to the motion, which included an expert affidavit relying upon photographs and other competent evidence, raised a triable issue of fact with regard to whether the defendant affirmatively created the alleged defect (see e.g. Ealey v City of New York, 16 AD3d 543 [2005]; Simpson v Tenore & Guglielmo, 287 AD2d 613 [2001]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. The defendant’s remaining contentions are without merit. Adams, J.E, Goldstein, Mastro and Lifson, JJ, concur.