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Yeancades v. Fam-Bur Realty

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


March 23, 2010

JOHN YEANCADES, ET AL., PLAINTIFFS-RESPONDENTS,
v.
FAM-BUR REALTY, INC., ET AL., APPELLANTS, CITY OF NEW YORK, DEFENDANT-RESPONDENT.

In an action to recover damages for personal injuries, etc., the defendants Fam-Bur Realty, Inc., and Francmen Realty LLC, appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated October 31, 2008, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

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.

MARK C. DILLON, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON and PLUMMER E. LOTT, JJ.

(Index No. 16576/07)

DECISION & ORDER

ORDERED that the order is affirmed, with one bill of costs to the respondent appearing separately and filing separate briefs.

On the morning of October 3, 2006, the plaintiff John Yeancades (hereinafter the plaintiff) allegedly tripped and fell over a depression in the roadway in front of certain premises in Brooklyn. Thereafter, the plaintiff and his wife, suing derivatively, commenced this action against, among others, the defendants Fam-Bur Realty, Inc., the entity that owned the premises, and Francmen Realty LLC, the entity that managed the premises (hereinafter together the appellants). The appellants subsequently moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

The appellants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they did not create the alleged roadway defect or cause it to occur through a special use of the roadway (see Hyland v City of New York, 32 AD3d 822). However, in opposition, a triable issue of fact was raised as to whether plumbers hired by the appellants created the alleged defect by opening and subsequently repaving the roadway in question (see Levy v Town of Huntington, 54 AD3d 732, 733). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

DILLON, J.P., BALKIN, DICKERSON and LOTT, JJ., concur.

20100323

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