Opinion
2014-03-28
Vehdin BAJRIC and Emina Bajric, Individually, and as Husband and Wife, Plaintiffs–Respondents, v. ESTATE OF Zehra HETO, by Faruk HETO, Administrator, Defendant–Appellant.
Appeal from an order of the Supreme Court, Oneida County (Patrick F. MacRae, J.), entered April 29, 2013 in a personal injury action. The order, among other things, denied in part defendant's motion for summary judgment dismissing the complaint. Law Office of Karen L. Lawrence, Dewitt (Theresa M. Zehe of Counsel), for Defendant–Appellant. Frank Policelli, Utica, and George F. Aney, Herkimer, for Plaintiffs–Respondents.
Appeal from an order of the Supreme Court, Oneida County (Patrick F. MacRae, J.), entered April 29, 2013 in a personal injury action. The order, among other things, denied in part defendant's motion for summary judgment dismissing the complaint.
Law Office of Karen L. Lawrence, Dewitt (Theresa M. Zehe of Counsel), for Defendant–Appellant. Frank Policelli, Utica, and George F. Aney, Herkimer, for Plaintiffs–Respondents.
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries sustained by Vehdin Bajric (plaintiff) when he was removing a porch on a two-family residence then owned by Zehra Heto (decedent). Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the common-law negligence claim. Plaintiffs allege that plaintiff's injury was caused by the defective condition of the premises, and we conclude that defendant failed to meet its initial burden of establishing that decedent lacked actual or constructive notice of the alleged defective condition ( see Shrout v. Rochester Gas & Elec. Corp., 77 A.D.3d 1372, 1373, 909 N.Y.S.2d 855). Because defendant failed to meet its initial burden, it is of no consequence that the court rejected plaintiffs' opposing papers as untimely ( see Roushia v. Harvey, 276 A.D.2d 970, 972, 714 N.Y.S.2d 800).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, and VALENTINO, JJ., concur.