| Minor v 1265 Morrison, LLC |
| 2012 NY Slip Op 05150 [96 AD3d 1024] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Angel Minor, Respondent, v 1265 Morrison, LLC, et al.,Appellants, et al., Defendant. |
—[*1] Law Offices of Michael S. Lamonsoff, PLLC, New York, N.Y. (Craig Phemister of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants 1265 Morrison, LLC,and David Yadegar appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Strauss, J.), entered December 8, 2011, as denied that branch of theirmotion which was for summary judgment dismissing the complaint insofar as asserted againstthe defendant 1265 Morrison, LLC.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleged that she was injured in a stairway of the apartment building where shelived when she tripped on a defective step due to it being misleveled, with portions of concretemissing. At the time of the accident, the apartment building was owned by the defendant 1265Morrison, LLC (hereinafter 1265 Morrison), and managed by the defendant David Yadegar(hereinafter together the defendants).
A defendant property owner who moves for summary judgment in a premises liability casehas the initial burden of making a prima facie showing that it neither created the hazardouscondition nor had actual or constructive notice of its existence (see Bravo v 564 Seneca Ave. Corp., 83AD3d 633, 634 [2011]; Bloomfieldv Jericho Union Free School Dist., 80 AD3d 637, 638 [2011]; Pryzywalny v New York City Tr.Auth., 69 AD3d 598 [2010]). "A defendant has constructive notice of a hazardouscondition on property when the condition is visible and apparent, and has existed for a length oftime sufficient to afford the defendant a reasonable opportunity to discover and remedy it"(Bravo v 564 Seneca Ave. Corp., 83 AD3d at 634).
As the Supreme Court correctly determined, the defendants failed to make a prima facieshowing of 1265 Morrison's entitlement to judgment as a matter of law. Here, the defendantsfailed to submit any evidence, aside from Yadegar's self-serving and conclusory remarks, todemonstrate when the subject stairway was last inspected prior to the accident (seePryzywalny v New York City Tr. Auth., 69 AD3d at 599). Additionally, the photographssubmitted by the defendants, which the plaintiff alleged were taken the day of the accident andwhich depicted the step [*2]in question at the time of her fall,also raised triable issues of fact as to whether the visible and apparent condition existed for asufficient length of time for 1265 Morrison to have discovered and remedied the defect (seeBravo v 564 Seneca Ave. Corp., 83 AD3d at 635).
In light of the defendants' failure to meet their prima facie burden, the Supreme Courtproperly denied that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against 1265 Morrison, and it is not necessary toconsider the sufficiency of the plaintiff's opposition (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Mastro, A.P.J., Florio, Chambers and Roman, JJ., concur.