KOZMA v. BIBERFELD

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

Edith KOZMA, et al., appellants, v. Marcel BIBERFELD, et al., respondents (and a third-party action).

Decided: September 27, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Douglas Herbert, Brooklyn, N.Y., for appellants. Richard Fehringer, East Rockaway, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated May 15, 1998, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

 The court improperly refused to consider the plaintiffs' expert's opinion on the ground that it was based solely on photographs of the alleged defective repair of the sidewalk rather than on an actual inspection of that repair (see, Nurik v. Ollstein, 231 A.D.2d 458, 647 N.Y.S.2d 464;  Matter of Aetna Cas. & Sur. Co. v. Barile, 86 A.D.2d 362, 364, 450 N.Y.S.2d 10).   In addition, the expert opinion that the sidewalk repair was made in the two- to four-year period before the date of the photographs, which were taken shortly after the accident, was based on specific aspects of the repair that were clearly depicted in the photographs (cf., Palazzo v. City of New Rochelle, 236 A.D.2d 528, 654 N.Y.S.2d 612;  Duprey v. Drake, 182 A.D.2d 1015, 582 N.Y.S.2d 829;  Matter of Aetna Cas. & Sur. Co. v. Barile, supra, at 365-366, 450 N.Y.S.2d 10).

 In light of the evidence that the defendants Marcel Biberfeld and Ester Biberfeld owned the property during the two- to four-year period during which the expert stated that the repair was made, and the deposition testimony by an employee for the City of New York that his search failed to disclose any records of repairs made by the City during that period, there is an issue of fact as to whether the City or the Biberfelds are responsible for the alleged defective repair (cf., Palazzo v. City of New Rochelle, supra).

MEMORANDUM BY THE COURT.

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