Lombardi v Partnership 92 W., L.P.

Lombardi v Partnership 92 W., L.P. 2015 NY Slip Op 05258 Decided on June 18, 2015 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 June 18, 2015
Gonzalez, P.J., Tom, Friedman, Kapnick, JJ.
15467 156968/12

[*1] John Lombardi, et al., Plaintiffs-Respondents, —

v

Partnership 92 West, L.P., et al., Defendants-Appellants.

Perry, Van Etten, Rozanski & Primavera, LLP, New York (Amara S. Faulkner of counsel), for appellants.

The Taub Law Firm, P.C., New York (Bruce E. Wingate of counsel), for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 10, 2014, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment insofar as it sought dismissal of the negligence and loss of consortium causes of action, unanimously affirmed, without costs.

Plaintiff Lombardi alleges that the drop-down ladder on defendants' fire escape malfunctioned as he was descending to the street, causing his foot to be trapped and injuring him. Defendants failed to make a prima facie showing of the absence of any defect in the fire escape, or that they lacked constructive notice of the alleged defect. Their manager and superintendent testified that they did not service or test the fire escape prior to plaintiff's accident, and defendants did not produce any inspection reports (see Del Carmen Cuaya Coyotl v 2504 BPE Realty LLC, 114 AD3d 620 [1st Dept 2014]). Since defendants made no showing of inspections of the fire escape before the accident, they "failed to show lack of constructive notice as a matter of law, requiring denial of their motion regardless of the sufficiency of plaintiff's opposing papers" (Showverer v Allerton Assoc., 306 AD2d 144 [1st Dept 2003]).

Defendants' contention that plaintiff's use of the fire escape to exit an apartment in a nonemergency situation was unforeseeable and unreasonable presents issues of fact for the jury (see Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 18, 2015

CLERK