Moore v 793-797 Garden St. Hous. Dev. Corp.

Moore v 793-797 Garden St. Hous. Dev. Corp. 2007 NY Slip Op 10029 [46 AD3d 382] December 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Marilyn Moore, Respondent,
v
793-797 Garden Street Housing Development Corporation et al., Appellants.

—[*1] Leahey & Johnson, P.C., New York City (Peter J. Johnson, Jr. of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about June 8, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly denied the motion for summary judgment in this action where plaintiff allegedly was caused to fall when, while descending a marble staircase, the stair upon which she stepped moved from its base. Defendants failed to satisfy their initial burden of establishing a lack of notice as a matter of law inasmuch as their witness had no personal knowledge of the condition of the allegedly defective step, and defendants offered no evidence from their employees who were regularly at the property and dealt with tenant complaints, and could have testified regarding the absence of any complaints about the subject step and when it was last inspected or repaired (see Porco v Marshalls Dept. Stores, 30 AD3d 284 [2006]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004]). Furthermore, the record evidence including plaintiff's testimony that she complained to the superintendent that the steps were uneven and had broken chips, and that steps in the vicinity of the accident had been patched and grouted, and were the subject of violations issued by the Department of Housing Preservation and Development, raise triable issues regarding whether defendants had notice of the condition that caused plaintiff to fall (see O'Connor-Miele v Barhite & Holzinger, 234 AD2d 106 [1996]). [*2]

We have considered defendants' remaining contentions and find them unavailing. Concur—Lippman, P.J., Andrias, Nardelli, Gonzalez and Kavanagh, JJ.