BROSNAN v. Charles Tudor, et al., appellants. (2008)

In an action to recover damages for personal injuries, the defendants Charles Tudor and Barbara Tudor appeal from an order of the Supreme Court, Orange County (Alessandro, J.), dated July 24, 2007, which granted the motion of the defendant Town of New Windsor for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Town of New Windsor which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511);  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, with costs, that branch of the motion of the defendant Town of New Windsor which was for summary judgment dismissing all cross claims asserted against it is denied, and the matter is remitted to the Supreme Court, Orange County, for further proceedings, including conversion of the cross claims asserted by the defendants Charles Tudor and Barbara Tudor against the defendant Town of New Windsor into a third-party action against the defendant Town of New Windsor, and amendment of the caption accordingly.

The plaintiff tripped and fell over a drainage hole after arriving at the appellants' property located at 105 Erie Avenue in New Windsor, where she was to examine a car that the appellants were selling.

The defendant Town of New Windsor established its prima facie entitlement to judgment as a matter of law dismissing all cross claims asserted against it by submitting the affidavit of the Town Clerk attesting that the Town did not own, control, manage, or maintain the subject drainage hole (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Nappi v. Incorporated Vil. of Lynbrook, 19 A.D.3d 565, 566, 796 N.Y.S.2d 537;  Weinberg v. City of New York, 3 A.D.3d 489, 490, 770 N.Y.S.2d 431).   In opposition, the appellants submitted evidence sufficient to raise a triable issue of fact with respect to the cross claims asserted by them against the Town as to ownership, control, management and/or maintenance of the subject drainage hole.   Specifically, in her affidavit, the defendant Barbara Tudor stated, inter alia, that she was a long-time resident of 105 Erie Avenue, that the Town installed a pipe, as well as the subject drainage hole, and had maintained and cleared sediment from the drainage hole (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Lang v. Carroll, 24 A.D.3d 1078, 1079, 806 N.Y.S.2d 289;  Colao v. Mills, 3 A.D.3d 702, 703, 770 N.Y.S.2d 474;  cf. Peasah v. C & S Value Stores, 306 A.D.2d 14, 759 N.Y.S.2d 657).

Accordingly, that branch of the Town's motion which was for summary judgment dismissing all cross claims asserted against it should have been denied.