| Serna v 898 Corp. |
| 2011 NY Slip Op 09202 [90 AD3d 560] |
| Dcmbr 20, 2011 |
| Appellate Division, First Department |
| John Serna et al., Appellants, v 898 Corporation et al.,Respondents. |
—[*1] Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta, III, of counsel), forrespondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 24, 2010,which granted defendants' motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, and the motion denied.
Defendants moved for summary judgment in this action for personal injuries suffered byplaintiff when an exterior metal staircase leading from the ground level to the basement ofdefendants' residential apartment building collapsed under his feet. We find that defendantsfailed to establish entitlement to judgment as a matter of law. Defendants did not demonstratethat they lacked constructive notice of the defect that caused the staircase to collapse. Thedeposition testimony and affidavits of defendants' witnesses failed to eliminate all materialquestions of fact regarding whether the "rust and corrosion" they observed on the underside ofthe landing and the frame supporting the staircase was present and visible for a considerablelength of time prior to plaintiff's accident. There is no evidence of record that defendantsinspected the underside of the exterior staircase for over a year prior to the staircase collapse.Although "the appearance of rust, standing alone, is insufficient to establish constructive notice"(Garcia v Northcrest Apts. Corp., 24AD3d 208, 209 [2005]), corrosion of the structure may have been sufficient to alertdefendants to a structural defect. However, given the length of time that the entire staircase wentuninspected, the evidence relied on by defendants did not establish that the corrosion would nothave been visible upon reasonable inspection of the bottom of the landing and the frame beforethe accident. Concur—Saxe, J.P., Catterson, Moskowitz, Acosta and Renwick, JJ.[Prior Case History: 2010 NY Slip Op 32719(U).]