Coban v Manhattan Val. W., LLC

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Coban v Manhattan Val. W., LLC 2012 NY Slip Op 30712(U) March 20, 2012 Supreme Court, New York County Docket Number: 108018/2009 Judge: Paul Wooten Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 312312012 [* 1] SUPREME COURT OF THE STATE OF'NEW YORK - NEW YORK COUNTY PRESENT: PART 7 HQN. PAUL WQOTEN Justice f JACQUELINE COBAN, - agalnat- Plalntlff, MOTION DATE MANHATTAN VALLEY WEST, LLC, I Defendaot. werlng Afflddvlts Exhiwits (Me lylhg Affldavitq (Reply Memo) 112284&19, are herkb [* 2] BACKGRQUI4 D In the herein action, plaintiff Jacqueling personal injuries she suffered in a slip-and-fall while desceqding the exterior stairs of the premises owned by her landlord Manhattap Valley. Ip the related action, Manhattan Valley action. 1 thqt there is no evidence that it had notice b I I [* 3] fact exist and the movant is entitled ta jhdgment as a matter of law (See Alvarsz v h W 8 C t Hosp., 68 hY2d 32b, 324 [19@]; And?e v PqhjBroy, $8 PdYr moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering Sufficient evidence in admissible fgrm demonstrating the absence of material issues Qf fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212 [b]). The failure to make such a showing requires denial of the motim, regardless I of the sufficiency of the opposing papors (seB Smalls v AJ( Indus., Inc., 10 NY3d 733, 736 eonmpving party to pr;p(iuce evidentia 1 [* 4] constructive notice of its existence (Smith v Costco Wholesale Gorp., 50 AD3d 499, 500 [Ist Dept 20081; Rodriguez v 705-7 E, 179th St. Dept 201 01). In order to wnstitute constructive notice, a defect mu$t be visible and apparent and it must exist for a sufficient length of time prior to the accident tq allow the defendant ta I discover and remedy it (see Perez v Bronx Park South Assoc. , 286 AD2d 402, 403 [ 1st bept I 20011; Ross v 5etty G. Reader Rdvocable Trust, 86 AD3d 41 $ , 4 his I burden cgnnot be satisfied by merely pbintihg to gaps in the plaintiff s case (see Nationwide I Property Cas. v Nqstor, 6 AD3d 409 [26 I I. wnstruqtive notic a baiaLdgus coQditi [* 5] notice must be provided within a reasonable time in view of all Qf the facts and circumstances ($&e Insurance Law $3420; GrQat Cdr@/Realty c o p : v Senecb Y3d 742 [2005]). In an action by an insured t9 compel its insurance company to defend and indemnify it, tbe insured has the ultimate burden of showing that there was a reasonable excuse for the dalay (see Security Mut, Ins. Co. O N, Y, v ACker-FitzsimQnS Corp., 31 NY2d 436 [ 19721). f The general rule is that where thel'e is evidence of an ex I ! recognized by the law, whether I ' Ce has been given Within a rea I I Valley offers for the [* 6] Court held that an ipsured bears the burden of proving, under all thg cjrcut-h?2vkgs; the Sbnableness bf the belief of nd'h' manager knew on the date of the incident that the tenv? been taken by ambulance to a hospital, and the building with the duty to report 5uGh matter$ is irh that the porter called him ta report the subject premises to discuss the imide L I 1 1 ilBiii d fallen on the prsrnises and had \, J > I *Il r [* 7] By letter dated July 28, 2009, RLI Insurance disclaimeq cwergge on ttle grdynd that the fhe insured Manhattan Valley failed 't Iri Law 5 3420 (d), requires that an insurer issue a written disglairner of coverage for death or I bodily injuries arising out pf accidents "as soon as is reassnably possible" (CQdtin v. Stradford, 1 I NY3d 443, 449'[2008]). question af whether RLI In$urance'q ngtiw af The I disclaimer after a 36-day pprioq, was s is reasonably ppssible'' i I I fact, dependent on all of the circub$tanC& ($@eIqsurapoe Hopkins, 88 NY2d 83@,[1 1 Fire & Cas. Co., 8 currcnce to RLI In$ 1 , I I law 9 3420 [d]: First Fin. Ihs. Co. v I [* 8] 11 I pl'emises. The dispute regarding Manhattan Valley's office manager' and her computer note or entry arose because it was discovdgd that , ' as reviewed by 'th6 pffi witness prior to her examination. Despite due demand, the npte has not besn prwhcad by Manhattan Valley. The contemporqnqouq ngte made of Coban's telephone call could ihdicate whether or not CQbantold the pffice ganqger thqt hgr slip-srncLfaIl Qccurredon Mirnhgftirn I Valley's staircase. Moreover, Manhatt I y fails to affer a clsar explan'gtiotl happened to the note. h Accordingly, it is 1 ERED that Manhatt ORDBRED that Rkl I Manhattan Valley West I : dcriptiw gf thg diligent and \ [* 9] retention policy (see Raland's Elec Inc. v USA Illurnipgtion, Inc., 90 4D3d 483, 486 [ I g t h p t 291 I]); it is furthar, and ORDERED that RLI Insurance Company is directed to serve a copy of this order with notice of entry upon all parties This constitutes thg Decision qnd Order of the Cobrt. I

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