Opinion
2012-10-25
Soila LISBEY, Plaintiff–Appellant, v. PEL PARK REALTY, Defendant–Respondent, 2860 Decatur Corporation, et al., Defendant.
Simon Lesser PC, New York (Leonard F. Lesser of counsel), for appellant. Gannon, Rosenfarb & Moskowitz, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Simon Lesser PC, New York (Leonard F. Lesser of counsel), for appellant. Gannon, Rosenfarb & Moskowitz, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 28, 2012, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for certain discovery and sanctions, unanimously modified, on the law, to deny defendants' motion, and, on the facts, to grant plaintiff's cross motion as to certain requested work orders and the deposition of John T. Satriale, Jr., and otherwise affirmed, without costs.
Plaintiff's complaints of the collapse of her bathroom ceiling and portions of her living room ceiling one year and again three months before the collapse of the living room ceiling in which she allegedly was injured present an issue of fact whether defendants were on constructive notice of a defect in plaintiff's living room ceiling ( see Radnay v. 1036 Park Corp., 17 A.D.3d 106, 107–108, 793 N.Y.S.2d 344 [1st Dept. 2005] ). To the extent the record is ambiguous as to the cause of the ceiling collapse, issues of fact exist as to the issue of defendants' duty to inspect plaintiff's apartment's ceilings and the applicability of the doctrine of res ipsa loquitur ( see Hayes v. Riverbend Hous. Co., Inc., 40 A.D.3d 500, 836 N.Y.S.2d 589 [1st Dept. 2007];Mejia v. New York City Tr. Auth., 291 A.D.2d 225, 227, 737 N.Y.S.2d 350 [1st Dept. 2002] ).
Since defendants did not disclose the existence of documents previously ordered produced or the identity of a witness with knowledge until their deposition just before the note of issue was filed, plaintiff's last-minute renewed demand for this discovery was justified. Thus, plaintiff may conduct further discovery in connection with her May 14, 2010 notice of inspection.