New York Supreme and/or Appellate Courts Appellate Division, First Department
February 7, 2012
RAYMIN CABRERA, ET AL., PLAINTIFFS-RESPONDENTS,
NEW YORK CITY DEPARTMENT OF EDUCATION, ET AL., DEFENDANTS-APPELLANTS, TEMCO SERVICE INDUSTRIES, INC., DEFENDANT.
Cabrera v New York City Dept. of Educ.
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.
Decided on February 7, 2012
Mazzarelli, J.P., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 6, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion as to defendant City of New York, and otherwise affirmed, without costs.
Defendant Department of Education (DOE) is not entitled to summary judgment because there is sufficient evidence in the record to raise a question of fact as to whether it knew of a recurring dangerous condition in the fence and routinely left it unaddressed (see Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107 ) or whether it undertook repairs and performed them negligently (see e.g. Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226-227 ).
The City is not a proper party to this action (see Bailey v City of New York, 55 AD3d 426 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 7, 2012
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