Mangum v. 500 Brush LLC

2018 NY Slip Op 2736

Opinion

Mangum v 500 Brush LLC (2018 NY Slip Op 02736)

Mangum v 500 Brush LLC

2018 NY Slip Op 02736

Decided on April 19, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 19, 2018
Friedman, J.P., Richter, Andrias, Kapnick, Webber, JJ.

6317 310472/08

[*1]Kerry Mangum, Plaintiff-Appellant,

v

500 Brush LLC, Defendant-Respondent.

Steve Anduze, Yonkers, for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Paul M. Tarr of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered March 14, 2016, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The record demonstrates that defendant, an out-of-possession landlord, neither created nor had actual knowledge of the alleged hazardous condition of the step on which plaintiff fell, which had chewed-up duct tape on its tread. Plaintiff testified that he had used the stairs and not noticed the condition approximately 20 minutes before he fell and that he did not notice the condition in the moment immediately preceding his fall on the wet step. As to constructive notice, a witness testified that, during a heavy rainfall, water fell in drips onto the floor at the foot of the stairs, but there is no evidence in the record that any alleged leak in the roof resulted from "a significant structural or design defect that is contrary to a specific safety provision" (see Torres v West St. Realty Co., 21 AD3d 718 [1st Dept 2005] [internal quotation marks omitted], lv denied 7 NY3d 703 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 19, 2018

CLERK