Serna v 898 Corp.

Serna v 898 Corp. 2011 NY Slip Op 09202 Decided on December 20, 2011 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 December 20, 2011
Saxe, J.P., Catterson, Moskowitz, Acosta, Renwick, JJ.
6412 103414/08

[*1]John Serna, et al., Plaintiffs-Appellants, ——

v

898 Corporation, et al., Defendants-Respondents.




Sullivan Papain Block McGrath & Cannavo, P.C., New York
(Susan M. Jaffe of counsel), for appellants.
Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta, III, of
counsel), for respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 24, 2010, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendants moved for summary judgment in this action for personal injuries suffered by plaintiff when an exterior metal staircase leading from the ground level to the basement of defendants' residential apartment building collapsed under his feet. We find that defendants failed to establish entitlement to judgment as a matter of law. Defendants did not demonstrate that they lacked constructive notice of the defect that caused the staircase to collapse. The deposition testimony and affidavits of defendants' witnesses failed to eliminate all material questions of fact regarding whether the "rust and corrosion" they observed on the underside of the landing and the frame supporting the staircase was present and visible for a considerable length of time prior to plaintiff's accident. There is no evidence of record that defendants inspected the underside of the exterior staircase for over a year prior to the staircase collapse. Although "the appearance of rust, standing alone, is insufficient to establish constructive notice" (Garcia v Northwest Apts. Corp., 24 AD3d 208 [2005]), corrosion of the structure may have been sufficient to alert defendants to a structural defect. However, given the length of time that the entire staircase went uninspected, the evidence relied on by defendants did not establish that the corrosion would not have been visible upon reasonable inspection of the bottom of the landing and the frame before the accident.

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

ENTERED: DECEMBER 20, 2011 [*2]

CLERK