Summary
In Garcia v. U-Haul Co., 303 A.D.2d 453, 755 N.Y.S.2d 900 (2d Dep't 2003), for example, summary judgment was denied where a plaintiff tripped over a beam on the floor, in view of an employee's testimony that "he had observed beams on the floor ‘once in a while,’ " and that he "saw beams on the ground or broken off about once or twice a month."
Summary of this case from Borley v. United StatesOpinion
2002-02703
Argued February 14, 2003.
March 10, 2003.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated January 31, 2002, as denied its cross motion for summary judgment dismissing the complaint.
Anthony J. Centone, P.C., White Plains, N.Y., for appellant.
Levine Gordet (Alexander J. Wulwick, New York, N.Y., of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff Grisel Garcia allegedly tripped over, and fell onto, a metal beam lying on the second floor of a U-Haul storage facility in Brooklyn. The defendant moved for summary judgment, claiming that it neither created nor had actual or constructive notice of the allegedly dangerous condition. The Supreme Court denied the motion. We affirm.
It is well established that a plaintiff in a slip and fall case must demonstrate that the defendant either created the defective condition or had actual or constructive notice of it (see e.g. Goldman v. Waldbaum, Inc., 248 A.D.2d 436). A defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition (see Freund v. Ross-Rodney Hous. Corp., 292 A.D.2d 341; Osorio v. Wendell Terrace Owners Corp., 276 A.D.2d 540; McLaughlan v. Waldbaums, Inc., 237 A.D.2d 335). Here a customer service representative at the facility testified that he had observed beams on the floor "once in a while," then stated that he saw beams on the ground or broken off about once or twice a month. Under such circumstances, a trier of fact could reasonably infer that the defendant had actual notice of such a recurring condition. Therefore, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur.