Kenyon v. City of New York , 598 N.Y.S.2d 508 ( 1993 )

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 28, 1992, which, inter alia, granted defendant’s and third-party defendant’s respective motions to dismiss the complaint and third-party complaint, unanimously affirmed, without costs.

In this sidewalk slip and fall case, there was no evidence that third-party defendant, although under contract to do so, had actually commenced making repairs to the sidewalk on the Lexington Avenue side of defendant’s premises where plaintiff allegedly fell. Nor is there any evidence that defendant had repaired the area where plaintiff fell at some unspecified time before the accident, much less that any prior repair made by defendant had been performed in a negligent manner. Judgment was therefore properly granted in favor of these parties. We decline to grant judgment in favor of defendant City of New York on the issue of prior notice, as the City failed to move for this relief below, and as the record remains somewhat ambiguous on this point. Concur—Carro, J. P., Rosenberger, Wallach, Kupferman and Rubin, JJ.