Opinion
805
April 18, 2002.
Order, Supreme Court, Bronx County (Howard Silver, J.), entered August 24, 2001, which, in an action for personal injuries allegedly sustained when plaintiff fell in the stairwell of defendant's apartment building, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
MICHAEL T. ALTMAN, for plaintiff-respondent.
JOSEPH C. FEGAN, for defendant-appellant.
Before: Tom, J.P., Andrias, Buckley, Wallach, Lerner, JJ.
The motion was properly denied, there being an issue of fact as to whether defendant had constructive notice of the alleged dangerous condition on the stairs. The affidavit of plaintiff's cousin submitted in opposition to the motion, while contradictory of some aspects of plaintiff's testimony that do not bear on notice, is sufficient to raise an issue of fact as to whether the condition had existed for a sufficient length of time prior to the accident for defendant to have discovered and remedied it (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837; compare, Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318). We also reject defendant's argument that such affidavit should have been precluded. Defendant's prior demand for a bill of particulars calling for the names of persons who "received [constructive] notice" of the alleged dangerous condition was at best confusing, and plaintiff's failure to interpret it as a demand for the names of persons who would testify to the length of time that the substance was on the stairs cannot be deemed willful or contumacious (compare,Masucci-Matarazzo v. Hoszowski, 291 A.D.2d 208, 736 N.Y.S.2d 866).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.