BERENHOLZ v. LOPEZ (2005)

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

Manya BERENHOLZ, et al., respondents, v. Carlos LOPEZ, et al., appellants.

Decided: September 19, 2005

ANITA R. FLORIO, J.P., HOWARD MILLER, DAVID S. RITTER, and REINALDO E. RIVERA, JJ.

Cullen and Dykman Bleakley Platt, LLP, Brooklyn, N.Y. (Dawn C. Wheeler of counsel), for appellants. Goldfarb & Goldfarb, Brooklyn, N.Y. (Thierry Ormejuste of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated November 4, 2004, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff tripped over wooden planking which had been placed over the area between the curb abutting the roadway and the sidewalk abutting the defendants' property. The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. We affirm.

The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; Portaro v. Tillis Inv. Co., 304 A.D.2d 635, 757 N.Y.S.2d 606). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment.

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