Cruz v Perspolis Realty LLC

Cruz v Perspolis Realty LLC 2019 NY Slip Op 01531 Decided on March 5, 2019 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 March 5, 2019
Sweeny, J.P., Renwick, Gische, Kahn, Kern, JJ.
8591 162414/14

[*1]Yolanda Cruz, Plaintiff-Appellant,

v

Perspolis Realty LLC, et al., Defendants-Respondents.

Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for appellant.

Ahmuty, Demers & McManus, New York (Frank J. Wenick of counsel), for respondents.

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered May 15, 2017, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Triable issues of fact exist in this action where plaintiff was injured when, while descending the interior steps of defendants' building, she slipped on melted ice cream that was present on the steps. Although defendants' superintendent testified that he complied with his regular maintenance routine on the day of the accident and never observed the cup of ice cream on the stairs, plaintiff testified that she observed the cup of ice cream in an upright position approximately three hours before her fall when she had returned home from work. Such conflicting testimony, along with a photograph showing a tipped over cup of melted ice cream taken moments after plaintiff's fall, creates a triable issue as to whether defendants had constructive notice of the condition (see Kurtz v Supercuts, Inc., 127 AD3d 546 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 5, 2019

CLERK