| Bravo v 564 Seneca Ave. Corp. |
| 2011 NY Slip Op 02823 [83 AD3d 633] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Evelyn Bravo et al., Appellants, v 564 Seneca AvenueCorp., Respondent, et al., Defendants. |
—[*1] McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy andBarry L. Manus of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appealfrom an order of the Supreme Court, Kings County (Rosenberg, J.), dated November 25, 2009,which granted the motion of the defendant 564 Seneca Avenue Corp. for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant564 Seneca Avenue Corp. for summary judgment dismissing the complaint insofar as assertedagainst it is denied.
Evelyn Bravo, the infant plaintiff, allegedly was injured when she fell down the stairsconnecting the first and second floors of the apartment building where she resided with herfamily. At the time of the occurrence, the infant plaintiff was three years old and descending thestairs with her mother, the plaintiff Guadalupe Bravo (hereinafter the mother). The defendant 564Seneca Avenue Corp. (hereinafter Seneca), the owner of the apartment building, moved forsummary judgment dismissing the complaint insofar as asserted against it. The Supreme Courtgranted the motion. We reverse.
"A defendant who moves for summary judgment in a premises liability case has the initialburden of making a prima facie showing that it neither created the hazardous condition nor hadactual or constructive notice of its existence for a sufficient length of time to discover andremedy it" (Bloomfield v Jericho UnionFree School Dist., 80 AD3d 637, 638 [2011]; see Martinez v Khaimov, 74 AD3d 1031, 1033 [2010]). Adefendant has constructive notice of a hazardous condition on property when the condition isvisible and apparent, and has existed for a length of time sufficient to afford the defendant areasonable opportunity to discover and remedy it (see Gordon v American Museum ofNatural History, 67 NY2d 836 [1986]; Perez v New York City Hous. Auth., 75 AD3d 629 [2010]).
Here, Seneca failed to make a prima facie showing of its entitlement to judgment as a matterof law. While Seneca's submissions established that it did not have actual notice of the allegeddangerous condition of the stairway landing on the premises, its submissions failed to [*2]eliminate all triable issues of fact as to whether it had constructivenotice of that condition. Seneca's representative, the building's managing agent, Romeo Cojocaru,testified at his deposition that he had not received any complaints regarding the condition of thestairway landing, and the mother testified at her deposition that she had never complained aboutthe condition prior to the accident (seeMauge v Barrow St. Ale House, 70 AD3d 1016, 1017 [2010]; Crapanzano v Balkon Realty Co., 68AD3d 1042 [2009]). However, Cojocaru also testified that the condition "did not happenovernight," and he was unsure how long it had existed on the premises prior to the date of theaccident. The photographs of the stairway landing submitted by the defendant also raise a triableissue of fact as to whether the visible and apparent condition existed for a sufficient length oftime for Seneca to have discovered and remedied the defect (see Batton v Elghanayan, 43NY2d 898, 899-900 [1978]; Williams vLong Is. R.R., 29 AD3d 900, 901 [2006]; see also Jackson v Fenton, 38 AD3d 495 [2007]; Brown v Linden Plaza Hous. Co., Inc.,36 AD3d 742 [2007]).
In light of Seneca's failure to meet its prima facie burden, it is not necessary to consider thesufficiency of the plaintiffs' opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court should have denied Seneca's motion for summary judgmentdismissing the complaint insofar as asserted against it. Dillon, J.P., Leventhal, Chambers andAustin, JJ., concur.