NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 2, 2008
JOAN RANDELL, ET AL., PLAINTIFFS-RESPONDENTS,
CITY OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS.
Order, Supreme Court, New York County (Debra A. James, J.), entered July 22, 2008, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Nardelli, McGuire, Acosta, DeGrasse, JJ.
The injured plaintiff allegedly tripped and fell in a depression next to a manhole cover as she was crossing a street in lower Manhattan. The road had been milled for paving the night before, and asphalt ramps had been placed around the manhole covers in order to smooth the transition. Shortly after the accident, the injured party's husband observed the gap to be 4 to 5 inches deep, 8 inches wide, and 10 inches long. Plaintiffs' description of the time, place and circumstances of the accident presents triable issues of fact as to whether the defect was trivial (see Argenio v Metropolitan Transp. Auth., 277 AD2d 165 ), and whether the temporary road work had been negligently performed (see Mendoza v City of New York, 170 AD2d 198 ; Sternbach v Cornell Univ., 162 AD2d 922 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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