| Sotomayor v Pafos Realty, LLC |
| 2007 NY Slip Op 06663 [43 AD3d 905] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Yvette Sotomayor, Appellant, v Pafos Realty, LLC,Respondent, et al., Defendant. |
—[*1] John P. Humphreys, Melville, N.Y. (Dominic P. Zafonte of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from an orderof the Supreme Court, Queens County (Kitzes, J.), dated September 28, 2006, which granted themotion of the defendant Pafos Realty, LLC, for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantPafos Realty, LLC, for summary judgment dismissing the complaint insofar as asserted against itis denied.
On August 8, 2004, at approximately 10:00 a.m., the plaintiff allegedly fell when exiting avariety store located on Broadway in Queens (hereinafter the premises). The premises wereoccupied by the defendant Woodside Variety Store, Inc. (hereinafter Woodside), as tenant undera lease with the defendant Pafos Realty, LLC (hereinafter Pafos), as landlord. The plaintifftestified at her deposition, in substance, that, as she exited through the front door which led to thestreet, her foot got caught in a hole on the exterior step and she fell. She did not see the hole untilafter her fall although she had entered the premises through the same door minutes earlier. Theplaintiff identified two photographs at her deposition, one of which was a close-up of the stepcontaining the hole.
In support of its motion for summary judgment, Pafos submitted the photographs togetherwith transcripts of the depositions of the plaintiff and Sotiris Constantinou, a partner in Pafos.The photographs were taken by the plaintiff's boyfriend, who had accompanied the plaintiff [*2]to the store, within the week following the plaintiff's fall. Thephotograph of the step showed a roughly circular hole in the approximate center of therectangular shaped concrete step. The plaintiff's deposition testimony was that the hole was aboutthree inches wide.
The Supreme Court granted Pafos' motion for summary judgment. We reverse. The proofadduced by Pafos, to wit, the photographs and the parties' deposition testimony, reflected thepresence of a triable issue of fact as to whether Pafos had constructive notice of the allegedlydangerous condition, the hole in the step (see Batton v Elghanayan, 43 NY2d 898 [1978];Peterson v Treeco Plainview, Ltd., 9 AD3d 402 [2004]). A jury could reasonablyinfer from the irregularity, width, depth, and appearance of the hole apparent in one photographthat the condition existed for a sufficient period of time for it to have been discovered andremedied by Pafos (see Taylor v New York City Tr. Auth., 48 NY2d 903 [1979];Batton v Elghanayan, 43 NY2d 898 [1978]; Brandes v Incorporated Vil. ofLindenhurst, 8 AD3d 315 [2004]; DeGruccio v 863 Jericho Turnpike Corp., 1 AD3d 472 [2003];DeGiacomo v Westchester County Healthcare Corp., 295 AD2d 395 [2002]).
Pafos was contractually obligated under the lease for the premises which was in effect at thetime of the occurrence to repair public portions of the premises. The step containing the hole ison the exterior of the building on the premises, and therefore the lease brings this case under oneof the exceptions to the general rule that an out-of-possession landlord is not liable for injuriessustained at the leased premises (seegenerally Gavallas v Health Ins. Plan of Greater N.Y., 35 AD3d 657 [2006]; Angwinv SRF Partnership, 285 AD2d 570 [2001]), specifically the exception in the situation"[where] it is contractually obligated to maintain or repair the premises" (Angwin v SRFPartnership, supra at 571).
Based on the foregoing, Pafos failed to demonstrate prima facie its entitlement to judgmentas a matter of law (see Boyd v RomeRealty Leasing Ltd. Partnership, 21 AD3d 920 [2005]), and the sufficiency of theplaintiff's opposing proof need not be considered (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851 [1985]; Godoy vBaisley Lbr. Corp., 40 AD3d 920 [2007]). The Supreme Court therefore erred ingranting the motion. Miller, J.P., Mastro, Lifson and Carni, JJ., concur.