Opinion
570308/03.
Decided November 19, 2004.
Plaintiffs appeal from an order of the Civil Court, New York County, entered April 11, 2002 (Saliann Scarpulla, J.) granting defendants' motion for summary judgment dismissing the complaint.
Order entered April 11, 2002 (Saliann Scarpulla, J.) reversed, with $10 costs, motion denied, and complaint reinstated.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
This negligence action seeks damages for personal injuries allegedly sustained by plaintiff Melida Rodriguez in the cosmetics department of a Macy's department store when she fell from a "makeup counter stool/chair" that "slid away" from her as she tried to sit on it. The store's own contemporaneous investigation report indicates that the metal legs of the chair lacked rubber tips of the type that plaintiff's expert averred, without contradiction, are customarily and "necessarily" used to prevent such a chair from "sliding by minimum force" across a marble store floor.
Summary judgment dismissal is unwarranted on this record, since defendants failed to meet their initial burden of establishing lack of notice as a matter of law. Viewing the complaint, the bills of particulars, the documentary evidence, and the various deposition testimony in the light most favorable to plaintiff, the opponent of the summary judgment motion, a factual issue is presented as to whether defendants had constructive notice of the chair's missing rubber tips or "safety tracks". "Where [a] defendant neither created the condition nor had actual notice, a defendant seeking to dismiss the complaint must demonstrate the lack of evidence regarding how the alleged condition came into evidence, how visible and apparent it was, and for how long a period of time prior to the accident it existed [citations omitted] ( Giuffrida v. Metro N. Commuter R.R. Corp., 279 AD2d 403, 404 [1st Dept 2001]). Defendants did not meet that burden here, in view of their failure to adequately describe their maintenance or inspection routines or to demonstrate that no prior complaints were received about the store's "makeup" chairs ( see, Deluna-Cole v. Tonali, Inc., 303 AD2d 186 [1st Dept 2003]; Jacques v. Richal Enter. Inc., 300 AD2d 45 [1st Dept 2002]), and especially considering the nature of the condition complained of and "the possibility that this was not a new defect" ( George v. New York City Tr. Auth., 306 AD2d 160 [1st Dept 2003]; cf., George v. Ponderosa Steak House, 221 AD2d 710 [2d Dept 1995]).
This constitutes the decision and order of the court.