Summary
holding defendants failed to establish their prima facie burden on constructive notice because they did not present evidence of when the location of the accident was last inspected
Summary of this case from Tower Nat'l Ins. Co. v. LugoOpinion
06-08-2017
TAO NIU, Plaintiff–Respondent, v. SASHA REALTY LLC, et al., Defendants–Appellants.
Hannum Feretic Prendergast & Merlino, LLC, New York (Matthew J. Zizzamia of counsel), for appellants. Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for respondent.
Hannum Feretic Prendergast & Merlino, LLC, New York (Matthew J. Zizzamia of counsel), for appellants.Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for respondent.
TOM, J.P., SWEENY, ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered June 23, 2016, which denied defendants Sasha Realty LLC and Beach Lane Management, Inc.'s motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss plaintiff's claims based on violations of Multiple Dwelling Law § 52 and the 1938 Building Code of City of New York (Administrative Code of City of N.Y.) § C26–292.0(g)(3), and otherwise affirmed, without costs.
Plaintiff seeks to recover for injuries he sustained when, as he was descending the staircase from the rooftop of defendants' building, the landing he stepped on collapsed, causing him to fall.
Initially, we note that the 1938 Building Code of City of New York (Administrative Code of City of N.Y.) § C26–292.0(g)(3) and Multiple Dwelling Law § 52 are inapplicable to this case. Although the subject staircase led to a rooftop, that rooftop was not an "exit" as defined in Administrative Code § 27–232, since it did not lead to a street or public space, and was not dedicated to public use (see DeRosa v. City of New York, 30 A.D.3d 323, 326, 817 N.Y.S.2d 282 [1st Dept.2006] ).
However, defendants failed to meet their prima facie burden of showing that they lacked constructive notice of the alleged defective condition. The building manager testified that he would inspect the building about two to three times a day, looking for property damage such as broken windows or handrails. However, he did not testify that he would inspect the building's stairs or its landings, or when he last did so. This testimony was insufficient to show that defendants lacked constructive notice of the defective condition (see Joachim v. AMC Multi–Cinema, Inc., 129 A.D.3d 433, 434, 11 N.Y.S.3d 119 [1st Dept.2015] ; Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept.2011] ).
Defendant's contention that the condition of the landing was latent since the reinforcement underneath would not have been discoverable upon a reasonable inspection, was refuted by plaintiff's expert who averred that the type of landing through which plaintiff fell was required to be regularly inspected and maintained, and that an inspection of the landing would have shown that it was susceptible to collapse. This was sufficient to raise an issue of fact (see Perez v. 2305 Univ. Ave., LLC, 78 A.D.3d 462, 463, 911 N.Y.S.2d 38 [1st Dept.2010] ).