Kowalczyk v Time Warner Entertainment Co., L.P.

Kowalczyk v Time Warner Entertainment Co., L.P. 2014 NY Slip Op 07450 Decided on October 30, 2014 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 30, 2014
Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.
13382 100176/05

[*1] Wieslaw Kowalczyk, Plaintiff-Respondent,

v

Time Warner Entertainment Company, L.P., et al., Defendants-Appellants, The City of New York, Defendant.

Newman Myers Kreines Gross Harris, P.C., New York (Charles W. Kreines, Richard Schmedake and Adrienne Yaron of counsel), for appellants.

William Schwitzer & Associates, PC, New York (Linda Simmons of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 21, 2013, which denied the Time Warner defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The Time Warner defendants failed to demonstrate their lack of constructive notice. Pursuant to 34 RCNY § 2-07, Time Warner is required to monitor, maintain and repair any defects to the cable box it owns and over which plaintiff fell. In order to establish lack of constructive notice, Time Warner was required to show that the condition was neither visible nor apparent or that it did not exist for a sufficient period of time for defendant to discover and correct it (see Ross v Betty G. Reader Revocable Trust, 86 AD3d 419 [1st Dept 2011]). Defendant provides no evidence that it inspected the cable box at any time prior to the accident and found it to be in good condition (Ross, 86 AD3d at 421). Nor does the plaintiff's bare-boned deposition testimony that he never saw the cable box any time before the accident satisfy defendant's burden. Upon our review of the record, we note that in any event an issue of fact was raised by the testimony of a Time Warner employee that his supervisor knew of an accident that may have damaged the cable box cover and that may well have occurred before plaintiff's [*2]accident. The Time Warner defendants' contention that the defect was latent and not discoverable upon reasonable inspection is improperly raised for the first time on appeal and is, in any event, factually inaccurate (see Titova v D'Nodal, 117 AD3d 431 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2014

CLERK