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Lesman v. Weinrib

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 1995
221 A.D.2d 601 (N.Y. App. Div. 1995)

Opinion

November 27, 1995

Appeal from the Supreme Court, Kings County (Ramirez, J.).


Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was allegedly injured when a malfunctioning elevator door suddenly and unexpectedly closed on her foot. The defendant, the owner of the building where the accident occurred, sought summary judgment dismissing the complaint solely on the ground that he had no actual or constructive notice of the defective condition.

The defendant's contention that the court should have disregarded the plaintiff's opposing affidavit because it allegedly contradicted her prior deposition testimony is unpreserved for appellate review. The defendant never made a request that the court disregard the affidavit. In any event, the affidavit did not contradict the plaintiff's deposition testimony and the court did not err in considering it.

There was some evidence before the court that the alleged defect was apparent for a sufficient length of time prior to the accident to have permitted the defendant to discover and remedy it, thus creating an issue of fact as to whether the defendant had constructive notice of the defective condition (see, Williams v Southland Corp., 204 A.D.2d 717, 718). Consequently, the court properly denied the defendant's cross motion. Bracken, J.P., Rosenblatt, Krausman and Florio, JJ., concur.


Summaries of

Lesman v. Weinrib

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 1995
221 A.D.2d 601 (N.Y. App. Div. 1995)
Case details for

Lesman v. Weinrib

Case Details

Full title:ANITA LESMAN, Respondent, v. JEROME WEINRIB, Appellant. (And a Third-Party…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 27, 1995

Citations

221 A.D.2d 601 (N.Y. App. Div. 1995)
634 N.Y.S.2d 179

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