Cabrera v New York City Dept. of Educ. (2012 NY Slip Op 00834)

Cabrera v New York City Dept. of Educ.

2012 NY Slip Op 00834 [92 AD3d 457]

February 7, 2012

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 28, 2012

Raymin Cabrera et al., Respondents,
v
New York City Department of Education et al., Appellants, et al., Defendant.

—[*1] Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellants.

Seligson, Rothman & Rothman, New York (Martin S. Rothman of counsel), for respondents.

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 [2003]) or whether it undertook repairs and performed them negligently (see e.g. Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226-227 [2002]).

The City is not a proper party to this action (see Bailey v City of New York, 55 AD3d 426 [2008]). Concur—Mazzarelli, J.P., Andrias, DeGrasse, Richter and Abdus-Salaam, JJ.