Lisbey v Pel Park Realty

Lisbey v Pel Park Realty 2012 NY Slip Op 07212 Decided on October 25, 2012 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 October 25, 2012
Mazzarelli, J.P., Sweeny, Renwick, Richter, Román, JJ.
8399 307047/08

[*1]Soila Lisbey, Plaintiff-Appellant,

v

Pel Park Realty, Defendant-Respondent, 2860 Decatur Corporation, et al., Defendant.




Simon Lesser PC, New York (Leonard F. Lesser of counsel), for
appellant.
Gannon, Rosenfarb & Moskowitz, New York (Lisa L.
Gokhulsingh of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 28, 2012, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for certain discovery and sanctions, unanimously modified, on the law, to deny defendants' motion, and, on the facts, to grant plaintiff's cross motion as to certain requested work orders and the deposition of John T. Satriale, Jr., and otherwise affirmed, without costs.

Plaintiff's complaints of the collapse of her bathroom ceiling and portions of her living room ceiling one year and again three months before the collapse of the living room ceiling in which she allegedly was injured present an issue of fact whether defendants were on constructive notice of a defect in plaintiff's living room ceiling (see Radnay v 1036 Park Corp., 17 AD3d 106, 107-108 [1st Dept 2005]). To the extent the record is ambiguous as to the cause of the ceiling collapse, issues of fact exist as to the issue of defendants' duty to inspect plaintiff's apartment's ceilings and the applicability of the doctrine of res ipsa loquitur (see Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500 [1st Dept 2007]; Mejia v New York City Tr. Auth., 291 AD2d 225, 227 [1st Dept 2002]).

Since defendants did not disclose the existence of documents previously ordered produced or the identity of a witness with knowledge until their deposition just before the note of [*2]issue was filed, plaintiff's last-minute renewed demand for this discovery was justified. Thus, plaintiff may conduct further discovery in connection with her May 14, 2010 notice of inspection.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2012

CLERK