Eisen v. City of New York

Order, Supreme Court, New York County (Louis York, J.), entered on or about July 1, 1997, which denied defendants-appellants’ motion for summary judgment dismissing the complaint and cross-claims against them, unanimously affirmed, without costs. Because it was dark at the time of the occurrence, questions of fact exist as to whether defendant provided plaintiff with a reasonably safe place to alight (compare, Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, affd 72 NY2d 888; Diedrick v City of New York, 162 AD2d 496; Otonoga v City of New York, 234 AD2d 592). Defendants, as proponents of a summary judgment motion, failed to meet their burden of tendering evidentiary proof in admissible form sufficient to establish their entitlement to judgment as a matter of law by demonstrating, inter alia, that an alternative safe path was available and that plaintiff knowingly chose a hazardous path (see, Connolly v Rogers, 195 AD2d 649, 651). Concur— Lerner, P. J., Sullivan, Rosenberger, Ellerin and Rubin, JJ.