JOSÉ R. HENNESSEY-DIAZ, plf-ap, v. THE CITY OF NEW YORK, def-res

2619. JOSÉ R. HENNESSEY-DIAZ, plf-ap, v. THE CITY OF NEW YORK, def-res, 601-142 REALTY L.L.C., def-ap Jonathan C. Reiter Law Firm, PLLC, New York (Jonathan C. Reiter of counsel), for Jos R. Hennessey-Diaz, ap Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York (Richard A. Gash of counsel), for 601-142 Realty L.L.C., ap Zachary W. Carter, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for res Order, Supreme Court, New York County (James E. d'Auguste, J.), entered on or about November 25, 2015, which granted defendant City of New York's motion for summary judgment dismissing the complaint, and denied the "cross motion" of defendant 601-142 Realty L.L.C. for summary judgment, unanimously modified, on the law, to deny the City's motion for summary judgment, and otherwise affirmed, without costs.

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2619. JOSÉ R. HENNESSEY-DIAZ, plf-ap, v. THE CITY OF NEW YORK, def-res, 601-142 REALTY L.L.C., def-ap Jonathan C. Reiter Law Firm, PLLC, New York (Jonathan C. Reiter of counsel), for Jos R. Hennessey-Diaz, ap Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York (Richard A. Gash of counsel), for 601-142 Realty L.L.C., ap Zachary W. Carter, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for res Order, Supreme Court, New York County (James E. d’Auguste, J.), entered on or about November 25, 2015, which granted defendant City of New York’s motion for summary judgment dismissing the complaint, and denied the “cross motion” of defendant 601-142 Realty L.L.C. for summary judgment, unanimously modified, on the law, to deny the City’s motion for summary judgment, and otherwise affirmed, without costs.

The affidavit of Ralph Gentles, an associate production manager of Sanborn Map Co., Inc. responsible for the legend on Big Apple Maps, wherein he averred that the symbol for a “raised or uneven portion of the side walk,” which appears on the Big Apple Map in the area where plaintiff tripped over a raised manhole cover, also applied to the manhole cover which would have been considered part of the sidewalk, was competent evidence of the business or professional custom or practice of the designations used by the company (see Soltis v. State of New York, 188 AD2d 201 [3d Dept 1993]; see e.g. Reyes v. City of New York, 20 Misc 3d 1134[A] [Sup Ct, Bronx County 2008], affd 63 AD3d 615 [1st Dept 2009], lv denied 13 NY2d 710 [2009]). As such, it raised a triable issue of fact as to whether the Big Apple Map gave the City prior written notice of the defect, and the court should have denied the City’s motion for summary judgment predicated on the lack of such notice.

JOSÉ R. HENNESSEY-DIAZ, plf-ap, v. THE CITY OF NEW YORK, def-res

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