DiPini v. 381 E. 160 Equities LLC

121 A.D.3d 465, 994 N.Y.S.2d 101

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 2014
• Docket: 13017 305655/11
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered May 31, 2013, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff was allegedly injured when she fell down a flight of stairs in defendant’s apartment building. She alleges that the accident was caused by a loose handrail that she was holding while descending the stairs. The looseness of the handrail was confirmed by the deposition of defendant’s superintendent who checked it shortly after plaintiff was injured. Defendant failed to satisfy its initial burden of establishing a lack of notice of the defect inasmuch as it offered no testimony as to when the admittedly loose handrail was last inspected or repaired prior to the accident (see e.g. Moore v 793-797 Garden St. Hous. Dev. Corp., 46 AD3d 382 [1st Dept 2007]). We nonetheless reject plaintiffs other theory that the allegedly worn marble tread on the stairway constituted an actionable defective condition (see Sims v 3349 Hull Ave. Realty Co. LLC, 106 AD3d 466, 467 [1st Dept 2013]).

Concur — Sweeny, J.E, Moskowitz, DeGrasse, ManzanetDaniels and Clark, JJ.