La Montain v. Calvarese

9 A.D.2d 593, 189 N.Y.S.2d 420, 1959 N.Y. App. Div. LEXIS 7462

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 1959
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Albany County in favor of plaintiffs, entered upon verdicts of a jury, and from an order denying defendant’s motion to set aside the verdicts and for a new trial. Plaintiff Domenica La Montain has recovered for personal injuries sustained when a portion of the plaster ceiling in the kitchen of her apartment fell and struck her, due, as the jury found, to the defendant landlord’s negligence in failing to remedy a defective condition after sufficient notice. The coplaintiff has recovered upon a derivative cause of action. The jury could well find that the ceiling had become dangerous and defective after absorption of water from the leaking roof of the building. It could properly be found, also, under the fair and comprehensive charge, to which no exception was taken, that the defendant landlord had actual or constructive knowledge, or both, of the existing defects within sufficient time to remedy the condition. Defendant personally occupied a store in the building. He did not testify and, in fact, offered no evidence in his defense. The day before the accident he saw the leaking ceiling and supplied three large basins to catch the water. A week before, he observed the same ceiling leaking. Two weeks before the accident he repaired a ceiling through which water had leaked into the bathroom in the same apartment. It seems obvious that the defect was in the roof, of which defendant had complete control, and hence that Cosgrove v. State of New York (277 App. Div. 596), upon which appellant relies, is not in point (see opinion, p. 600). Judgment and order affirmed, with costs to respondents. Coon, J. P., Gibson, Herlihy and Reynolds, JJ., concur.