Reardon v. Benderson Development Co.

Appellate Division of the Supreme Court of New York

Reardon v. Benderson Development Co.

266 A.D.2d 869, 697 N.Y.S.2d 893, 1999 N.Y. App. Div. LEXIS 11788

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 12, 1999

StatusPublished

Cited by2 cases

This text of 266 A.D.2d 869 (Reardon v. Benderson Development Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reardon v. Benderson Development Co., 266 A.D.2d 869, 697 N.Y.S.2d 893, 1999 N.Y. App. Div. LEXIS 11788 (N.Y. Ct. App. 1999).

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Opinion

—Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Carl Reardon when he stepped on a broken portion of sidewalk and fell at a plaza owned by Benderson Development Co., Inc. [870]*870and Nathan Benderson (defendants). Supreme Court properly denied defendants’ cross motion for summary judgment dismissing the complaint. Even assuming, arguendo, that defendants met their burden of establishing their entitlement to judgment, we conclude that the photographs submitted by plaintiffs raise a triable issue of fact with respect to defendants’ constructive notice of the defect (see, McPherson v Van Kouwenberg, 258 AD2d 885; Zavaro v Westbury Prop. Inv. Co., 244 AD2d 547, 548). A “jury could infer from the irregularity, width, depth and appearance of the defect apparent in the concrete surface exhibited in the photographs that the condition had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant[s] (see, Taylor v New York City Tr. Auth., 48 NY2d 903; Blake v City of Albany, 48 NY2d 875)” (Ferlito v Great S. Bay Assocs., 140 AD2d 408, 409). (Appeal from Order of Supreme Court, Erie County, Kane, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Scudder and Callahan, JJ.

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—Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Carl Reardon when he stepped on a broken portion of sidewalk and fell at a plaza owned by Benderson Development Co., Inc. [870]*870and Nathan Benderson (defendants). Supreme Court properly denied defendants’ cross motion for summary judgment dismissing the complaint. Even assuming, arguendo, that defendants met their burden of establishing their entitlement to judgment, we conclude that the photographs submitted by plaintiffs raise a triable issue of fact with respect to defendants’ constructive notice of the defect (see, McPherson v Van Kouwenberg, 258 AD2d 885; Zavaro v Westbury Prop. Inv. Co., 244 AD2d 547, 548). A “jury could infer from the irregularity, width, depth and appearance of the defect apparent in the concrete surface exhibited in the photographs that the condition had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant[s] (see, Taylor v New York City Tr. Auth., 48 NY2d 903; Blake v City of Albany, 48 NY2d 875)” (Ferlito v Great S. Bay Assocs., 140 AD2d 408, 409). (Appeal from Order of Supreme Court, Erie County, Kane, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Scudder and Callahan, JJ.

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Bluebook (online)

266 A.D.2d 869, 697 N.Y.S.2d 893, 1999 N.Y. App. Div. LEXIS 11788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reardon-v-benderson-development-co-nyappdiv-1999.

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