Opinion
12977 Index No. 28780/17E Case No. 2020-03967
01-28-2021
Tracy W. SOLOMON, Plaintiff–Respondent, v. DIEGO BEEKMAN MUTUAL HOUSING DEVELOPMENT FUND CORP., Defendant–Appellant.
Molod Spitz & DeSantis, P.C., New York (David Owens and Marcy Sonneborn of counsel), for appellant. Mirman, Markovitz & Landau, P.C., New York (David Weissman of counsel), for respondent.
Molod Spitz & DeSantis, P.C., New York (David Owens and Marcy Sonneborn of counsel), for appellant.
Mirman, Markovitz & Landau, P.C., New York (David Weissman of counsel), for respondent.
Acosta, P.J., Webber, Oing, Scarpulla, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.) entered on or about May 29, 2020, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff commenced this action for personal injuries allegedly sustained when she tripped and fell as she ascended the interior staircase of defendant's building. Defendant failed to establish, prima facie, that the gap on the stairway riser on which plaintiff allegedly caught her flip-flop was trivial as a matter of law (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 81–82, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ; Arpa v. 245 E. 19 Realty LLC, 188 A.D.3d 479, 135 N.Y.S.3d 99 [1st Dept. 2020] ). Further, there are triable issues of fact as to whether the defendant lacked constructive notice of the alleged defect (see Flanders v. Sedgwick Avenue Assoc., LLC, 156 A.D.3d 504, 65 N.Y.S.3d 443 [1st Dept. 2017] ). Defendant proffered no evidence as to when the staircase was last inspected and a jury could infer from the photographs of the defective condition that it was there for a sufficient length of time for defendant to have discovered and remedied it (see id. ).
Since defendant failed to meet its prima facie burden, the motion must be denied regardless of the sufficiency of plaintiff's opposition papers (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).