Hassie Feliciano, Respondent, v. City of New York, Defendant, and 104th St. Realty, LLC, et al., Appellants

Hassie Feliciano, Respondent, v City of New York, Defendant, and 104th St. Realty, LLC, et al., Appellants. [757 NYS2d 430] [MAJORITY] Order, Supreme Court, New York County (Robert Lippmann, J.), entered February 28, 2002, which, insofar as appealed from, denied defendants-appellants’ cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff’s expert asserted that improper patching of a hole in the public sidewalk abutting defendants-appellants’ premises was the proximate cause of the injuries sustained by plaintiff. Defendants-appellants’ manager’s deposition testimony concerning sidewalk repair procedures raises an issue of fact concerning whether defendants-appellants performed the alleged defective patchwork, and are thus subject to liability (see Hausser v Giunta, 88 NY2d 449, 452-453 [1996]). Accordingly, defendants-appellants’ cross motion for summary judgment dismissing the complaint against them was properly denied. Concur — Mazzarelli, J.P., Andrias, Friedman, Marlow and Gonzalez, JJ.