| Rosado v Phipps Houses Servs., Inc. |
| 2012 NY Slip Op 02385 [93 AD3d 597] |
| March 29, 2012 |
| Appellate Division, First Department |
| Jessica Rosado, Respondent, v Phipps Houses Services,Inc., et al., Appellants. |
—[*1] Kresman & Weiner, LLP, New York (David J. Kresman of counsel), forrespondent.
Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered May 10, 2011, whichdenied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Plaintiff alleges that she slipped and fell in a puddle located on an exterior landing ofpremises owned, managed and/or operated by defendants, and that two yellow caution cones hadbeen placed against the wall, to her right and left, as she exited, but not in the area of the liquidcondition. The presence of caution cones here created a triable issue of fact as to prior actualnotice of the condition, as defendants' witness admitted that they would place such caution conesto alert others to a slippery condition and plaintiff denied that the cones were being used to propopen a door, as had been alleged by defendants' witness (see Felix v Sears, Roebuck & Co., 64 AD3d 499 [2009]; Hilsman v Sarwil Assoc., L.P., 13AD3d 692 [2004]). Additionally, while the hearsay portions of a witness affidavit submittedin opposition to the motion, which referred to an unidentified person or persons having admittedprior notice of the condition, were inadmissible (see Cassanova v General Cinema Corp. ofN.Y., 237 AD2d 155 [1997]; Pascarella v Sears, Roebuck & Co., 280 AD2d 279[2001]), the witness's first hand account of providing defendants with notice of the condition atleast 45 minutes before the accident raised triable issues of fact as to prior actual and constructivenotice of the condition. Concur—Mazzarelli, J.P., Andrias, Moskowitz, Acosta andAbdus-Salaam, JJ.