Jangana v. Nicole Equities LLC

127 A.D.3d 458, 8 N.Y.S.3d 46

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 2015
• Docket: 14783 304027/11
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 13, 2014, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff alleges that he was injured when, while making a delivery to a tenant in defendants’ building, he tripped over mislaid or raised carpeting on the staircase of the building. The evidence demonstrates that triable issues exist as to whether defendants had constructive notice of the defective condition. Plaintiff testified that he noticed the condition of the carpet when making deliveries to the premises on prior occasions. In addition, defendants’ own expert stated that the carpet in question would move three-eighths of an inch upon an application of 25 pounds of horizontal force. Contrary to defendants’ contention that any defect in the carpet was trivial, whether a defective condition, here, the movement of the carpet, exists so as to create liability depends on “the peculiar facts and circumstances of each case and is generally a question of fact for the jury” (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks omitted]; see also Nin v Bernard, 257 AD2d 417 [1st Dept 1999]).

We have considered defendants’ remaining contentions and find them unavailing.

Concur — Gonzalez, P.J., Mazzarelli, Saxe, Manzanet-Daniels and Clark, JJ.