Gardner v. County of Monroe

247 A.D.2d 865, 668 N.Y.S.2d 818

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1998
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously reversed on the law with costs, motion and cross motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting the motion and cross motion of defendants for summary judgment dismissing the complaint. The record contains evidence that defendants had actual notice of a recurrent dangerous condition involving missing or dislodged drain hole covers, and plaintiff testified at her deposition that an employee of defendant APCOA, Inc., was aware of uncovered holes in the area where plaintiff fell and told her that he had fallen in one of the holes before her accident. Thus, there is an issue of fact with respect to constructive notice (see, Camizzi v Tops, Inc., 244 AD2d 1002; Gutz v County of Monroe, 221 AD2d 838). (Appeal from Judgment of Supreme Court, Monroe County, Siragusa, J. — Summary Judgment.)

Present— Denman, P. J., Lawton, Balio, Boehm and Fallon, JJ.