Aviles v 2333 1st Corp.

Aviles v 2333 1st Corp. 2009 NY Slip Op 07191 [66 AD3d 432] October 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

David Aviles, Respondent,
v
2333 1st Corp., Appellant.

—[*1] Michelle S. Russo, Port Washington, for appellant.

Gugliotta & Associates, New Rochelle (John C. Gugliotta of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered March 10, 2009, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff does not contend that defendant created the alleged water hazard on the building's interior stairs that allegedly caused him to slip and fall, and defendant does not contest the existence of the hazard. Defendant's evidence established that it did not have actual notice of the hazard (see Campanella v Marstan Pizza Corp., 280 AD2d 418, 418 [2001]). Furthermore, defendant described its usual cleaning procedures regarding the stairs, but did not indicate that such procedures were followed on the day of the accident. Defendant failed to show the last time the stairs were inspected before plaintiff fell, and thus there is a question of fact on whether defendant had constructive notice of the complained of condition (see Moser v BP/CG Ctr. I, LLC, 56 AD3d 323, 324 [2008], citing, inter alia, Baptiste v 1626 Meat Corp., 45 AD3d 259 [2007]). Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.