Majority
p. 333Jerome Saitta, Plaintiff, v City of New York, Respondent, and Bicent Properties, Appellant, et al., Defendant. [722 NYS2d 522]
—Order, Supreme Court, New York County (Kibbie Payne, J.), entered May 16, 2000, which, in a slip and fall action, denied the motion of defendant-appellant property owner Bicent Properties (Bicent) and the cross motion of defendant City of New York for summary judgment, unanimously modified, on the law and upon a search of the record, to grant summary judgment dismissing the complaint as against the City of New York, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant-respondent City of New York dismissing the complaint.
Summary judgment was properly denied to Bicent since triable issues remain as to whether it created or heightened the
p. 334
icy hazard on the sidewalk that is alleged to have caused plaintiff to slip and fall (compare, Gaudino v 511 W. 232nd St. Owners Corp., 279 AD2d 272 ; Bale v Pyron, 256 AD2d 1128 ). The action should, however, have been dismissed as against the City in view of the meteorological evidence showing that the precipitation ended on the morning preceding plaintiff’s accident, with sub-freezing temperatures on that day and the two preceding days (see, Sing Ping Cheung v City of New York, 234 AD2d 91 ; Valentine v City of New York, 86 AD2d 381 , affd 57 NY2d 932 ; compare, Rugova v 2199 Holland Ave. Apt. Corp., 272 AD2d 261 , 263). Concur — Rosenberger, J. P., Williams, Tom, Lerner and Buckley, JJ.
Cases cited
- Bale v. Pyron Corp. 256 AD2d 1128 p. 334
- Valentine v. City of New York 86 AD2d 381 p. 334
- Valentine v. City of New York 57 NY2d 932 p. 334
- Rugova v. 2199 Holland Avenue Apartment Corp. 272 AD2d 261 at 263 p. 334