Opinion
570751/07.
Decided November 7, 2008.
Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered August 4, 2006, which denied their motions for summary judgment.
Order (Julia I. Rodriguez, J.), entered August 4, 2006, affirmed, with $10 costs.
PRESENT: Davis, J.P., Schoenfeld, Heitler, JJ.
Plaintiff seeks damages for personal injuries allegedly sustained when he tripped and fell as a result of a hole in a walkway of a cooperative apartment complex. Plaintiff alleged that he fell while "walking in the common walkway" which "[ran] in front of" defendant Banker's residence. According to plaintiff, the hole was covered with leaves and weeds, and a portion thereof extended under a fence owned by Banker. Defendants' motion for summary judgment was properly denied since triable issues exist as to whether defendant Edgewater Park Co-op Owners had actual or constructive notice of the defect in the walkway. The parties' deposition testimony indicated that the defect was of long duration and the photographs support an inference that the complained of condition was not suddenly created (see Jacobsen v Krumholz, 41 AD3d 128). An issue of fact is also raised as to whether defendant Banker created or contributed to the creation of the defective condition, inasmuch as he removed and installed a fence over the area where the hole was located.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.