Opinion
05-10-2016
Steven STERBINSKY, et al., Plaintiffs–Respondents, v. 780 RIVERSIDE DRIVE, LLC, Defendant–Appellant.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. Raphaelson & Levine Law Firm, P.C., New York (Steven C. November of counsel), for respondents.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. Raphaelson & Levine Law Firm, P.C., New York (Steven C. November of counsel), for respondents.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about March 13, 2015, which, to the extent appealed from, granted plaintiffs' motion for partial summary judgment on the issue of liability and denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The motion court properly awarded partial summary judgment on the issue of liability based upon the doctrine of res ipsa loquitur in this action where plaintiff Steven Sterbinsky, a cable television technician, was injured when, while walking on a metal grate on defendant's property, the grate collapsed causing him to fall down an air shaft. Defendant building owner failed to rebut the presumption of negligence arising from the collapse of the grate due to the corroded condition of the metal frame supporting it (see O'Connor v. 72 St. E. Corp., 224 A.D.2d 246, 637 N.Y.S.2d 412 [1st Dept.1996] ; Kai Chan v. 1058 Corp., 200 A.D.2d 434, 607 N.Y.S.2d 246 [1st Dept.1994] ; Dillenberger v. 74 Fifth Ave. Owners Corp., 155 A.D.2d 327, 547 N.Y.S.2d 296 [1st Dept.1989] ). Defendant's assertion that the condition of the frame was a latent defect, not observable upon reasonable inspection, is belied by, inter alia, the testimony of the building's porter, who stated that the edges of the grate were rusted, and by the contemporaneous observations of plaintiff's coworker and supervisor. Furthermore, defendant's claim of no notice is unavailing because notice is inferred when res ipsa loquitur applies (see Ezzard v. One East River Place, 129 A.D.3d 159, 8 N.Y.S.3d 195 ).
MAZZARELLI, J.P., RENWICK, SAXE, GISCHE, KAHN, JJ., concur.