Smith v 985 Amsterdam Ave. Hous. Dev. Fund Corp., 2011 NY Slip Op 01575 [82 AD3d 426]

March 3, 2011

Appellate Division, First Department

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Bader Yakaitis & Nonnenmacher, LLP, New York (Robert E. Burke of counsel), for appellant.

Gannon, Lawrence & Rosenfarb, New York (Lisa L. Gokhulsingh of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 14, 2010, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant met its initial burden of showing entitlement to summary judgment by submitting evidence in the form of a property survey and expert affidavit averring that the defective condition was located on an adjacent property. In opposition, plaintiff failed to raise an issue of fact concerning the location of the defective condition. The survey and the affidavit of the surveyor both identify the raised portion of the concrete slab upon which plaintiff claimed to have tripped as being on the property adjacent to defendant’s property. Further, plaintiff testified that he was walking north on Amsterdam Avenue, that his foot caught on a piece of concrete and that he tripped and fell in front of the barbershop. Plaintiff does not dispute that the barbershop is located at 983 Amsterdam Avenue, which is adjacent to and south of defendant’s property ( see Balsam v Delma Eng’g Corp. , 139 AD2d 292, 296-297 [1988], lv denied in part and dismissed in part 73 NY2d 783 [1988]). Concur—Saxe, J.P., Sweeny, Catterson, Freedman and RomÁn, JJ..