Opinion
14181 Index No. 156118/16 Case No. 2020–03565
07-08-2021
Ines MARTINEZ, Plaintiff–Appellant, v. 560–568 AUDUBON REALTY LLC et al., Defendants–Respondents.
Manuel D. Gomez, New York, for appellant.
Manuel D. Gomez, New York, for appellant.
Manzanet–Daniels, J.P., Webber, Singh, Kennedy, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 18, 2019, which granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment, unanimously modified, on the law, to deny defendants’ motion, and otherwise affirmed, without costs.
Defendants established prima facie entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the crack at the edge of the marble step where plaintiff fell. Defendant s submitted the testimony of plaintiff, the property manager, and the member of the owner that they had never seen the crack before the accident, and the testimony of defendants’ member that it would have been repaired if discovered (see e.g. Rosario v. Prana Nine Props., 143 A.D.3d 409, 410, 38 N.Y.S.3d 182 [1st Dept. 2016] ).
In opposition, plaintiff raised a triable issue of fact. Although the court properly declined to consider the affidavit of the notice witness who was not produced or identified until after defendants’ motion for summary judgment was filed (see Matas v. Clark & Wilkins Indus., Inc., 61 A.D.3d 582, 583, 877 N.Y.S.2d 314 [1st Dept. 2009], lv denied 13 N.Y.3d 703, 2009 WL 2779253 [2009] ), the affidavit of plaintiff's expert and the photographic evidence were sufficient to raise an issue of fact as to constructive notice. The expert opined that the condition depicted in the photographs violated the Building Code and that the step was worn for several years prior to the accident. Furthermore, the photographs depicted a condition that a jury might find was present for a sufficient time for defendants to have discovered and remedied it (see King v. City Bay Plaza., 118 A.D.3d 476, 476, 987 N.Y.S.2d 382 [1st Dept. 2014] ).
Plaintiff's cross motion was properly denied because the record revealed issues of fact.