| Burgos v Montemurro Enters. LLC |
| 2013 NY Slip Op 00554 [102 AD3d 629] |
| January 31, 2013 |
| Appellate Division, First Department |
| Samuel Burgos, Respondent, v MontemurroEnterprises LLC, Appellant. |
—[*1] Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 22,2012, which denied defendant's motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
Defendant landlord failed to establish its entitlement to judgment as a matter of lawin this action where plaintiff was injured when he tripped and fell on a condition causedby uneven planks on the wooden walkway in front of his apartment. The evidencesubmitted by defendant which included the deposition testimony of plaintiff, plaintiff'sson, defendant's owner and the building's superintendent, as well as the photographs ofthe uneven plank condition, raises factual issues as to whether defendant hadconstructive notice of the defect (see Taylor v New York City Tr. Auth., 48NY2d 903 [1979]; Calderon vNoonan Towers Co. LLC, 33 AD3d 495 [1st Dept 2006]). The depositiontestimony also precludes a finding as a matter of law that the lighting outside plaintiff'sapartment was adequate or that the alleged inadequate lighting was not a proximate causeof the accident (see Swerdlow vWSK Props. Corp., 5 AD3d 587, 588 [2d Dept 2004]; Streit v DTUT,302 AD2d 450 [2d Dept 2003]). Moreover, the conclusion of defendant's expert that thelighting was sufficient at the time of the accident is speculative and was based on aninspection of the premises almost two years after the accident (see Santo v Astor Ct.Owners Corp., 248 AD2d 267 [1st Dept 1998]). Concur—Tom, J.P., Andrias,Acosta, Manzanet-Daniels and Román, JJ.