BERNSTEIN v. Rock-Forty-Ninth, Inc., Defendant-Appellant. (1999)

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

Sylvia BERNSTEIN, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Respondent, Rock-Forty-Ninth, Inc., Defendant-Appellant.

Decided: January 21, 1999

SULLIVAN, J.P., NARDELLI, RUBIN and MAZZARELLI, JJ.

Howard A. Chetkof, for Plaintiff-Respondent. Linda H. Young, for Defendant-Respondent. Sanford Hausler, for Defendant-Appellant.

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered December 9, 1997, which, in an action for personal injuries allegedly caused by a defective sidewalk, denied defendant-appellant abutting property owner's motion for summary judgment dismissing the complaint and any cross claims as against it, and order, same court and Justice, entered March 19, 1998, which, insofar as appealable, denied appellant's motion to renew, unanimously affirmed, without costs.

An issue of fact exists as to whether appellant created the defective sidewalk, raised by evidence that demolition work was performed on the property, and that the only gate through the chain link fence surrounding the demolition site was in front of the sidewalk where plaintiff fell. We note, as did the motion court, that the type of equipment used at the site, and how it was brought there, are facts exclusively within appellant's knowledge.

MEMORANDUM DECISION.

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