DAYON CORPREW, an infant, by his mother, and natural guardian, AVA RILEY, AND AVA RILEY, INDIVIDUALLY, Plaintiff,
THE CITY OF NEW YORK and THE NEW YORK CITY HOUSING AUTHORITY, Defendant. Index no. 115023/08
Motion Date: 12/21/12
DEBRA A. JAMES, Justice
The following papers, numbered 1 to 3 were read on this motion for summary judgment.
Notice of Motion/Order to Show Cause -Affidavits -Exhibits __________ No(s)._____1____
Answering Affidavits - Exhibits _________________________________ No(s)._____1____
Replying Affidavits - Exhibits _________________________________ No(s)._____1____
Cross-Motion: □ Yes □ No
Upon the foregoing papers,
In this action for personal injury, plaintiffs Dayon Corprew, an infant, by his mother and natural guardian, Ava Riley and Ava Riley individually, move for an order, pursuant to CPLR 3212, granting summary judgment on their claims against defendant the New York City Housing Authority (NYCHA), the only remaining party.
The following facts are not in dispute. On September 10, 2007, Corprew, then five years old, sustained injuries when he was struck by a falling tree limb at the General Grant Housing Complex, a public housing development operated by NYCHA, located at 1315 Amsterdam Avenue in New York City (the Premises). Plaintiffs subsequently commenced this lawsuit asserting two causes of action for negligence and loss of affection. Defendant The City of New York filed an answer on November 28, 2007. NYCHA filed its answer on December 4, 2008. The City of New York subsequently moved for dismissal, which was granted on June 24, 2009.
Plaintiffs argue that they are entitled to summary judgment on their first cause of action because: (1) the tree limb that struck Corprew on the head was on NYCHA's property; (2) the child sustained injuries which included a fractured skull and an altered mental state; (3) NYCHA had actual and constructive notice of the dangerous condition which led to Corprew's injuries; and (4) a reasonable inspection of the Premises would have uncovered the fact that the trees on the Premises were in need of pruning.
NYCHA argues that plaintiffs are not entitled to summary judgment because: (1) NYCHA did not have actual or constructive notice of the alleged dangerous condition of the damaged tree limb alleged to have caused Corprew's injuries; and (2) plaintiffs failed to identify the specific location within the Premises at which the alleged construction or maintenance of the grounds was negligent; and (3) plaintiff's expert's affidavit is based on hearsay and is devoid of any reference to the photographs and documents exchanged in this litigation.
Plaintiffs have met their burden in establishing a prima facie showing of entitlement to judgment as a matter of law on their ...