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Pastore v. Town of Harrison

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


December 9, 2008

CAROL PASTORE, RESPONDENT,
v.
TOWN OF HARRISON, APPELLANT.

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered September 10, 2007, as, in effect, granted that branch of the plaintiff's motion which was for summary judgment against it on the issue of the defendant's negligence.

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.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON and ARIEL E. BELEN, JJ.

(Index No. 13427/05)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

In opposition to the plaintiff's prima facie showing that the defect which caused her trip-and-fall accident was created by the defendant's negligence in repairing the roadway in question (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), the defendant failed to raise a triable issue of fact (see CPLR 3212[b]). Furthermore, proof that a dangerous condition is open and obvious does not preclude a finding of negligence against a landowner for the failure to maintain the property in a safe condition, but is relevant on the issue of the plaintiff's comparative negligence (see Cupo v Karfunkel, 1 AD3d 48, 52). Accordingly, the Supreme Court properly awarded summary judgment to the plaintiff on the issue of the defendant's negligence.

FISHER, J.P., ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

20081209

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