| Habib v Baldini |
| 2008 NY Slip Op 04426 [51 AD3d 1250] |
| May 15, 2008 |
| Appellate Division, Third Department |
| Dayana D. Habib, Respondent, v Caren Baldini et al.,Appellants. |
—[*1] Alexander & Catalano, L.L.C., Syracuse (Benjamin C. Rabin of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Garry, J.), entered July 23, 2007 inTompkins County, which denied defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action seeking to recover for injuries allegedly sustained inNovember 2003 when the bedroom window in her apartment purportedly dropped while she waslooking out of it, striking her on the head. At the time of the incident, plaintiff's apartment wasowned by defendant Caren Baldini and managed by defendant Certified Properties of TompkinsCounty, Inc. Following joinder of issue and discovery, defendants moved for summary judgmentdismissing the complaint contending that they had no notice of the allegedly defective windowprior to plaintiff's accident. Supreme Court denied the motion, finding a question of fact as towhether plaintiff indeed provided prior notice of the alleged defect. This appeal by defendantsensued.
We affirm. "To demonstrate their entitlement to summary judgment, defendants wererequired to establish as a matter of law that they maintained the property in question in areasonably safe condition and that they neither created the allegedly dangerous condition existingthereon nor had actual or constructive notice thereof" (Richardson v Rotterdam Sq. Mall,289 AD2d 679, 679 [2001] [citations omitted]; see Gerfin v North Colonie Cent. School Dist., 41 AD3d 1085,1085-1086 [2007]; Mokszki v Pratt,13 AD3d 709, 710 [2004]). Here, Certified's [*2]owner,Shane Varricchio, testified that prior to plaintiff's accident, plaintiff and her roommates provideda handwritten list of complaints regarding the apartment. Although that list contained thenotation "windows falling apart," Varricchio testified that he did not see that handwritten listprior to the commencement of this action, and that he first heard of the alleged problem withplaintiff's bedroom window—namely, that it would not stay open—following heraccident. Varricchio further testified that he questioned his staff and that no one at Certifiedreceived any complaints regarding the window in question until after plaintiff was injured. Suchtestimony was sufficient to discharge defendants' initial burden on their motion for summaryjudgment.
In opposition, plaintiff testified that when she moved into the apartment in August 2003, theoffending window had a broken pane of glass and would not stay open; as plaintiff put it, "WhenI opened it, it would fall right down." While those alleged defects were admittedly not detailed inthe handwritten list of complaints allegedly tendered to Varricchio when plaintiff first moved in,she testified that she specifically complained to Varricchio about these conditions. Contrary todefendants' argument on appeal, plaintiff never testified that the handwritten list provided toVarricchio was the exclusive means by which she complained about the window. Viewing theevidence in the light most favorable to plaintiff and according her the benefit of every reasonableinference to be drawn therefrom (seeGadani v Dormitory Auth. of State of N.Y., 43 AD3d 1218, 1219 [2007]; Blakeslee v Wadsworth, 37 AD3d1021, 1022 [2007]), we agree with Supreme Court that plaintiff's testimony sufficientlyraised a question of fact concerning whether defendants had actual notice of the allegedlydefective condition.
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,with costs.