ABREVAYA v. Andale, Inc., etc., Defendant. (2003)

Supreme Court, Appellate Division, First Department, New York.

Lynn ABREVAYA, et al., Plaintiffs-Respondents, v. Walter STECKMAN, Defendant-Appellant, Andale, Inc., etc., Defendant.

Decided: March 27, 2003

TOM, J.P., MAZZARELLI, SULLIVAN, WILLIAMS and GONZALEZ, JJ.

Kristen A. Duesel, for Plaintiffs-Respondents. Mark A. Collesano, for Defendant-Appellant.

Order, Supreme Court, New York County (Louis York, J.), entered November 14, 2002, which, in an action for personal injuries sustained when plaintiff tripped over an oil fill cap in the sidewalk in front of a building owned by defendant, denied defendant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Issues of fact exist as to whether the oil fill cap was hazardous, including whether it was raised above or sunk below the surface of the sidewalk, and, if so, its elevation or depth (see Schechtman v. Lappin, 161 A.D.2d 118, 121, 554 N.Y.S.2d 846; cf. Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489). We are unable to discern from the photographs in the record that, as defendant claims, the cap was at grade with the sidewalk or just below it.

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