WEBER v. TOWN OF HEMPSTEAD (2009)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Phelan, J.), dated October 11, 2007, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On the night of September 23, 2004, the plaintiff allegedly tripped and fell on an uneven surface in the Newbridge Road Park parking lot, located in the defendant Town of Hempstead, and fractured his right foot.   As the plaintiff correctly concedes on appeal, the defendant established that it lacked prior written notice of a dangerous and defective condition at the subject location (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Tuzzolo v. Town of Hempstead, 292 A.D.2d 446, 738 N.Y.S.2d 692).   However, the plaintiff raised a triable issue of fact (see CPLR 3212 [b] ) as to whether the repair work which the defendant performed on the surface of the parking lot immediately resulted in the existence of the dangerous condition which caused the plaintiff to trip and fall (see Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  Bohm v. Town of Brookhaven, 43 A.D.3d 454, 456, 841 N.Y.S.2d 144).   Therefore, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.