Cosenza v. 303 Beverly Owners Corp.

32 A.D.3d 489, 820 N.Y.S.2d 142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (F. Rivera, J), dated January 28, 2005, as denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, without costs or disbursements.

The plaintiff, a New York City Police Officer, allegedly was injured while investigating a report of a suspicious package on the roof of the defendant’s premises.

The Supreme Court properly denied summary judgment to both parties on the General Municipal Law § 205-e cause of action. Pursuant to General Municipal Law § 205-e, a defendant may be held liable for personal injuries when those injuries are shown to be practically and reasonably connected to a violation by the defendant of a statute or code (see Galapo v City of New York, 95 NY2d 568, 572 [2000]; Delio v City of New York, 8 AD3d 325 [2004]; Quinto v New York City Tr. Auth., 7 AD3d 689 [2004]; Williams v City of New York, 256 AD2d 332 [1998]). In this case, there are triable issues of fact as to whether the cited provisions of the New York City Building Code applied to the area where the plaintiff was injured and whether the defendant violated those provisions.

Similarly, the Supreme Court properly denied summary judgment to both parties on the common-law negligence cause of action. There are triable issues of fact as to whether the defendant created the allegedly defective condition, or had actual or constructive notice of that condition (see Crespi v M.E.I.T Assoc., LLC, 18 AD3d 495 [2005]; Williams v Century 21, Inc., 12 AD3d 364 [2004]; Curíale v Sharrotts Woods, Inc., 9 AD3d 473 [2004]; Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2003]). Schmidt, J.P., Adams, Luciano and Lifson, JJ., concur.