| Weber v Town of Hempstead |
| 2009 NY Slip Op 00200 [58 AD3d 617] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Henry Weber, Respondent, v Town of Hempstead,Appellant. |
—[*1] Stock & Carr, Mineola, N.Y. (Victor A. Carr of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Phelan, J.), dated October 11, 2007, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On the night of September 23, 2004 the plaintiff allegedly tripped and fell on an unevensurface in the Newbridge Road Park parking lot, located in the defendant Town of Hempstead,and fractured his right foot. As the plaintiff correctly concedes on appeal, the defendantestablished that it lacked prior written notice of a dangerous and defective condition at thesubject location (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Tuzzolov Town of Hempstead, 292 AD2d 446 [2002]). However, the plaintiff raised a triable issueof fact (see CPLR 3212 [b]) as to whether the repair work which the defendantperformed on the surface of the parking lot immediately resulted in the existence of thedangerous condition which caused the plaintiff to trip and fall (see Oboler v City of New York, 8NY3d 888, 889 [2007]; Bohm vTown of Brookhaven, 43 AD3d 454, 456 [2007]). Therefore, the Supreme Courtproperly denied the defendant's motion for summary judgment dismissing the complaint. Skelos,J.P., Santucci, Dillon and Covello, JJ., concur.