Opinion
15467, 156968/12
06-18-2015
John LOMBARDI, et al., Plaintiffs–Respondents, v. PARTNERSHIP 92 WEST, L.P., et al., Defendants–Appellants.
Perry, Van Etten, Rozanski & Primavera, LLP, New York (Amara S. Faulkner of counsel), for appellants. The Taub Law Firm, P.C., New York (Bruce E. Wingate of counsel), for respondents.
Perry, Van Etten, Rozanski & Primavera, LLP, New York (Amara S. Faulkner of counsel), for appellants.
The Taub Law Firm, P.C., New York (Bruce E. Wingate of counsel), for respondents.
GONZALEZ, P.J., TOM, FRIEDMAN, KAPNICK, JJ.
Opinion
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 10, 2014, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment insofar as it sought dismissal of the negligence and loss of consortium causes of action, unanimously affirmed, without costs.
Plaintiff Lombardi alleges that the drop-down ladder on defendants' fire escape malfunctioned as he was descending to the street, causing his foot to be trapped and injuring him. Defendants failed to make a prima facie showing of the absence of any defect in the fire escape, or that they lacked constructive notice of the alleged defect. Their manager and superintendent testified that they did not service or test the fire escape prior to plaintiff's accident, and defendants did not produce any inspection reports (see Del Carmen Cuaya Coyotl v. 2504 BPE Realty LLC, 114 A.D.3d 620, 980 N.Y.S.2d 767 [1st Dept.2014] ). Since defendants made no showing of inspections of the fire escape before the accident, they “failed to show lack of constructive notice as a matter of law, requiring denial of their motion regardless of the sufficiency of plaintiff's opposing papers” (Showverer v. Allerton Assoc., 306 A.D.2d 144, 761 N.Y.S.2d 44 [1st Dept.2003] ).
Defendants' contention that plaintiff's use of the fire escape to exit an apartment in a nonemergency situation was unforeseeable and unreasonable presents issues of fact for the jury (see Lesocovich v. 180 Madison Ave. Corp., 81 N.Y.2d 982, 599 N.Y.S.2d 526, 615 N.E.2d 1010 [1993] ).