TOLBERT v. The City of New York, Defendant-Respondent. (1998)

Order, Supreme Court, New York County (Louis York, J.), entered on or about January 8, 1998, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion was properly denied on the ground that triable issues of fact exist bearing upon whether defendants breached their duty to provide plaintiff with a safe place to alight, including whether defendants knew or should have known of the street pothole that allegedly caused plaintiff to trip and fall (see, Matter of Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, 109, 511 N.Y.S.2d 612, affd. 72 N.Y.2d 888, 532 N.Y.S.2d 752, 528 N.E.2d 1225), and whether vehicular and pedestrian traffic blocked any safe alternative path around the pothole to the curb (see, id., at 110-111, 511 N.Y.S.2d 612, comparing, inter alia, Rodriguez v. Manhattan & Bronx Surface Tr. Operating Auth., 117 A.D.2d 541, 498 N.Y.S.2d 826, lv. denied 68 N.Y.2d 602, 505 N.Y.S.2d 1026, 496 N.E.2d 239, with Keener v. Tilton, 283 N.Y. 454, 28 N.E.2d 912).   We note that defendants' claim that plaintiff negotiated her own path is supported only by their attorney's affirmation.

MEMORANDUM DECISION.