Baquero v. Youngs Memorial Cemetery, Inc.

248 A.D.2d 497, 669 N.Y.S.2d 887, 1998 N.Y. App. Div. LEXIS 2627

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated February 13, 1997, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the defendant’s contentions, the deposition testimony of the plaintiff Javier Baquero was sufficient to raise a triable issue of fact as to the existence of a defective condition on the defendant’s property which allegedly caused his fall (see, Romano v Westbury Prop. Inv. Co., 240 AD2d 388; Farrar v Teicholz, 173 AD2d 674). The plaintiffs also submitted evidence raising an issue of fact as to whether the defendant had actual or constructive notice of the alleged defect (see, Gordon v American Museum of Natural History, 67 NY2d 836; Romano v Westbury Prop. Inv. Co., supra; Ferlito v Great S. Bay Assocs., 140 AD2d 408).

We decline to reach the defendant’s remaining contention, as it is raised for the first time on appeal (see, Matter of Allstate Ins. Co. v Bieder, 212 AD2d 693; Miller Org. v Vasap Constr. Corp., 184 AD2d 763).

Rosenblatt, J. P., Ritter, Copertino and Goldstein, JJ., concur.