| Gleason v City of New York |
| 2009 NY Slip Op 09615 [68 AD3d 1054] |
| December 22, 2009 |
| Appellate Division, Second Department |
| John Gleason, Respondent, v City of New York,Respondent-Appellant, Arrow Steel Window Corp., et al., Appellants-Respondents, and PeerlessProducts, Inc., Respondent. |
—[*1] Galvano & Xanthakis, P.C., New York, N.Y. (Matthew Kelly of counsel), forappellant-respondent E.C. Contracting, Inc. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and SusanPaulson of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, (1) the defendants Arrow SteelWindow Corp., and E.C. Contracting, Inc., separately appeal from so much of an order of theSupreme Court, Kings County (Miller, J.), dated February 23, 2009, as denied those branches oftheir respective motions which were for summary judgment dismissing the cause of actionalleging common-law negligence insofar as asserted against each of them and all cross claimsinsofar as asserted against each of them, and (2) the defendant City of New York cross-appeals,as limited by its brief, from so much of the same order as denied those branches of its crossmotion which were for summary judgment dismissing the cause of action alleging common-lawnegligence insofar as asserted against it and all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
On January 31, 2002 the plaintiff, a police officer, was opening a window in the men's lockerroom of the 78th Police Precinct in Brooklyn, when the bottom pane of the window fell out of itsframe, striking and injuring him. The window was manufactured by the defendant PeerlessProducts, Inc. (hereinafter Peerless). The premises were owned by the defendant City of NewYork. The window was installed pursuant to a contract between the defendant Arrow SteelWindow Corp. (hereinafter Arrow) and the City. The actual installation work was performed bythe defendant E.C. Contracting, Inc. (hereinafter E.C.), pursuant to an oral agreement betweenArrow and E.C.[*2]
The plaintiff commenced the instant action against theCity, Arrow, E.C. (hereinafter collectively the defendants), and Peerless, alleging, inter alia,common-law negligence, and a cause of action based upon General Municipal Law §205-e, which was later withdrawn by the plaintiff. The City asserted cross claims against Arrow,E.C., and Peerless, and Peerless asserted cross claims against Arrow, E.C., and the City.
After issue was joined, Arrow and E.C. separately moved, and the City cross-moved, forsummary judgment. In the order appealed and cross-appealed from, the Supreme Court, interalia, denied those branches of the separate motions of Arrow and E.C., and the City's crossmotion, which were for summary judgment dismissing the cause of action alleging common-lawnegligence insofar as asserted against each of them, and all cross claims asserted against each ofthem.
On its motion for summary judgment, the City, as owner of the property where the accidentoccurred, was required to establish as a matter of law that it neither created the dangerouscondition which caused the accident, nor had actual or constructive notice of such condition(see Andrini v Navarra, 49 AD3d 575 [2008]; Keese v Imperial Gardens Assoc.,LLC, 36 AD3d 666, 668 [2007]). Only after this threshold burden has been met will thecourt examine the sufficiency of the plaintiff's submissions in opposition (id.). To giverise to constructive notice, a defect must be visible and apparent and must exist for a sufficientlength of time before the accident to permit the defendant to discover and remedy it (seeAndrini v Navarra, 49 AD3d 575 [2008], citing Gordon v American Museum of NaturalHistory, 67 NY2d 836 [1986]).
The evidence showed that there was a gap between the window frame and the wall, whichexisted for a sufficient length of time before the accident to permit the City to discover andremedy it. However, the evidence submitted by the defendants was sufficient to establish primafacie that this gap did not affect the security of the window. In opposition, the plaintiff submittedhis personal affidavit, stating that the gap caused the window frame to flex and allowed thewindow to come out. This was sufficient to raise a triable issue of fact as to constructive notice.The affidavit was not inconsistent with the plaintiff's deposition testimony as to how the accidentoccurred and, therefore, did not constitute an attempt to create a feigned issue of fact (seeBarco v Green Bus Lines, Inc., 62 AD3d 923, 924 [2009]; Nembhard v Mount VernonCity School Dist. Bd. of Educ., 300 AD2d 456 [2002]).
Arrow and E.C. failed to establish, as a matter of law, that their alleged negligence did notcontribute to the accident (see Segrell v City of New York, 44 AD3d 929 [2007]).
The defendants' remaining contentions are without merit. Prudenti, P.J., Covello, Lott andSgroi, JJ., concur. [Prior Case History: 22 Misc 3d 1127(A), 2009 NY Slip Op50309(U).]