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Bryan Schwartz, et al., Plaintiffs-Appellants v. Empire City Subway Company (Limited)

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 9, 2013

BRYAN SCHWARTZ, ET AL., PLAINTIFFS-APPELLANTS,
v.
EMPIRE CITY SUBWAY COMPANY (LIMITED), DEFENDANT-RESPONDENT, VERIZON NEW YORK INC., ET AL., DEFENDANTS.

Schwartz v Empire City Subway Co. (Ltd)

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 May 9, 2013 Andrias, J.P., Saxe, Freedman, Roman, JJ.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered May 30, 2012, which granted defendant Empire City Subway Company's motion for summary judgment dismissing the complaint as against it, and denied plaintiffs' motion for summary judgment as to liability, unanimously affirmed, without costs.

In this personal injury action, plaintiff Bryan Schwartz alleges that he slipped and fell on a slippery manhole cover. Defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence of the lack of prior notice of any defective condition and its engineer's affidavit attesting to the safe condition of the manhole cover (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).

Although, in opposition to the motion, plaintiffs may have raised an issue of fact as to the existence of a defective condition, they failed to raise a triable issue of fact as to whether defendant had notice of the latent slippery condition of the manhole cover (see Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [1st Dept 2007], lv denied 9 NY3d 809 [2007]). Indeed, the cover's slip-preventive lettering and pattern appeared visible upon inspection, as evidenced by photographs.

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 9, 2013

CLERK

20130509

© 1992-2013 VersusLaw Inc.



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