Opinion
01-26-2015
Gregory WILLIAMSON, Plaintiff–Respondent, v. OGDEN CAP PROPERTIES, LLC, et al., Defendants–Appellants.
Law Office of Gerard A. Falco, Harrison (Gerard A. Falco of counsel), for appellants. Pollack Pollack Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Law Office of Gerard A. Falco, Harrison (Gerard A. Falco of counsel), for appellants.
Pollack Pollack Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, DeGRASSE, RICHTER, CLARK, JJ.
Opinion Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered July 3, 2013, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to make a prima facie showing that they lacked constructive notice of the alleged defective mailbox panel, because it is undisputed that they never inspected the panel prior to plaintiff postal worker's accident. Defendants' alleged lack of a key to open the panel is not determinative, as they failed to show that a cursory inspection would not have disclosed the loose condition of the panel observed by plaintiff and the notice witness in the months prior to the accident. Accordingly, the record presents an issue of fact as to whether defendants exercised reasonable care in maintaining the mailbox panel, and whether constructive notice may be imputed (see Stubbs v. 350
E. Fordham Rd., LLC, 117 A.D.3d 642, 643–644, 988 N.Y.S.2d 579 [1st Dept.2014] ; see also Cohen v. Interlaken Owners, 275 A.D.2d 235, 712 N.Y.S.2d 513 [1st Dept.2000] ). Soto v. New Frontiers 2 Hope
Hous. Dev. Fund Co., Inc., 118 A.D.3d 471, 987 N.Y.S.2d 385 [1st Dept.2014] ) is distinguishable because there, the defendants demonstrated that a reasonable inspection would not have revealed the defect. Defendants also failed to make a prima facie showing that their negligence was not a proximate cause of the accident (see Del Carmen Cuaya Coyotl v. 2504 BPE Realty LLC, 114 A.D.3d 620, 980 N.Y.S.2d 767 [1st Dept.2014] ).
Even if defendants had met their prima facie burden, plaintiff's testimony, coupled with the notice witness's statement, raised an issue of fact as to whether the screws on the right side of the mailbox panel were missing or loose and whether the alleged defect existed for a sufficient period of time before the accident to enable defendants to discover and repair it (see Picaso v. 345 E. 73 Owners Corp., 101 A.D.3d 511, 512, 956 N.Y.S.2d 27 [1st Dept.2012] ).