Brown v. Linden Plaza Housing Co.

36 A.D.3d 742, 829 N.Y.S.2d 571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 2007
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Douglass, J.), dated October 19, 2005, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition (see Osorio v Wendell Terrace Owners Corp., 276 AD2d 540 [2000]). Here, the defendants failed to meet their burden of establishing that the condition of garbage and debris on the interior stairway of the premises was not frequent, ongoing, and customary, and that they did not have actual notice of this allegedly recurring condition.

Moreover, while the defendants contend that the plaintiffs inability to identify the defect that caused her to fall warranted dismissal of the complaint, it could be logically inferred from this record that the cause of the plaintiffs slip-and-fall accident was the presence of trash on the stairway (see Mitchell v Mongoose, Inc. 19 AD3d 380 [2005]).

Accordingly, the defendants’ motion for summary judgment dismissing the complaint was properly denied. Rivera, J.P., Spolzino, Ritter and Angiolillo, JJ., concur.