LYNCH v. Charles B. Benenson, et al., Defendants-Appellants.

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

Barbara LYNCH, Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants, Charles B. Benenson, et al., Defendants-Appellants.

Decided: February 27, 2001

NARDELLI, J.P., WILLIAMS, TOM, ANDRIAS and BUCKLEY, JJ. Dimitrios C. Fotopoulos, for Plaintiff-Respondent. Brendan T. Fitzpatrick, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered March 23, 2000, which denied defendants-appellants' motion for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

In opposition to the motion for summary judgment, plaintiff stated that she had to walk close to a parked ambulance in order to avoid a water-filled depression in defendant's parking lot;  that she tried to regain her balance when she was struck by a gurney being pulled out of that ambulance, but could not because of the depth of the depression, the water in it and the force of the blow;  and that she sustained injuries to her pelvis and ankle.   This latter statement by plaintiff, insofar as it indicates that the water-filled depression contributed to her injuries, is not inconsistent with her deposition testimony.   Plaintiff's deposition and affidavit in opposition to the motion raise triable issues of fact as to whether defendants had constructive notice of the allegedly dangerous depression such that their failure to fix it was negligent (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774), and, if so, whether such negligence was a substantial factor in causing plaintiff's injury (see, Derdiarian v. Felix Contr.   Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).