Opinion
No. CA 09-01814.
February 11, 2010.
Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered May 28, 2009 in a personal injury action. The order denied defendant's motion for summary judgment.
WEBSTER SZANYI LLP, BUFFALO (MICHAEL P. McCLAREN OF COUNSEL), FOR DEFENDANT-APPELLANT.
LYNN LAW FIRM, LLP, SYRACUSE (PATRICIA A. LYNN-FORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Smith, J.P., Fahey, Carni and Green, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed with costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he struck his head on an open window grate at defendant's gymnasium. Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint. Even assuming, arguendo, that defendant met its initial burden on the motion, we conclude that plaintiffs submissions in opposition to the motion raise a triable issue of fact whether defendant had constructive notice of the allegedly defective condition of the window grate ( see Champagne v Peck, 59 AD3d 1130; George v New York City Tr. Auth., 41 AD3d 143; Alexander v New York City Tr., 34 AD3d 312, 313-314). We reject the contention of defendant that it is entitled to judgment as a matter of law on the issue of proximate cause inasmuch as defendant failed to demonstrate that plaintiffs injury was not the result of the allegedly defective condition of the window grate ( see Powers v St. Bernadette's R.C. Church, 309 AD2d 1219).