Denyssenko v. Plaza Realty Services, Inc.

8 A.D.3d 207, 779 N.Y.S.2d 197, 2004 N.Y. App. Div. LEXIS 8921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 2004
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about October 7, 2003, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The photographic evidence of the alleged hazard in defendant’s parking lot to which plaintiff attributes her harm, showing a jagged-edged pothole filled with water, does not permit the conclusion that the defect was trivial as a matter of law (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). The pictures of the apparently long-standing defect, taken within two weeks of plaintiff’s accident, and which plaintiff testified depicted the complained-of hazard as it existed at the time of the accident, were properly considered on the motion and raised a triable issue of fact as to whether defendant had constructive notice of the defect (see Karten v City of New York, 109 AD2d 126 [1985]). Concur—Tom, J.P., Andrias, Williams, Marlow and Gonzalez, JJ.