Fuentes v. City of New York

Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about December 27, 1995, which granted defendant-respondent’s motion for summary judgment dismissing the complaint and cross claims against it, unanimously affirmed, without costs.

Plaintiff’s claim that defendant’s practice of transporting a dumpster over the sidewalk either created the crack in the sidewalk that caused his fall or constituted a special use of the sidewalk was controverted by defendant’s grounds supervisor, who testified at deposition that he observed the defect in the sidewalk three or four years before the incident but that defendant had been moving the dumpster for only about one year before, and that defendant’s loader did not drive over the portion of the sidewalk where plaintiff fell. The motion court properly gave this testimony conclusive effect in the absence of any offer by plaintiff of evidentiary proof in admissible form to *104the contrary (see, Belmonte v City of New York, 180 AD2d 617; Noto v Mermaid Rest., 156 AD2d 435). Nor can defendant be liable for plaintiff’s injuries caused by the icy conditions since the storm was still in progress at the time plaintiff fell (see, Newsome v Cservak, 130 AD2d 637). Concur—Murphy, P. J., Rosenberger, Rubin and Mazzarelli, JJ.