Summary
In Rosado v. Phipps Houses Services. Inc., 940 N.Y.S.2d 866 (1st Dept. 2012), plaintiff alleged that she slipped and fell in a puddle located on an exterior landing of defendants' premises and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition.
Summary of this case from Brown v. Addison Hall Owners Corp.Opinion
2012-03-29
Jessica Rosado, Plaintiff–Respondent, v. PHIPPS HOUSES SERVICES, INC., et al., Defendants–Appellants.
Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, New York (James V. Derenze of counsel), for appellants. Kresman & Weiner, LLP, New York (David J. Kresman of counsel), for respondent.
Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, New York (James V. Derenze of counsel), for appellants. Kresman & Weiner, LLP, New York (David J. Kresman of counsel), for respondent.
Mazzarelli, J.P., Andrias, Moskowitz, Acosta, Abdus–Salaam, JJ.
Order, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered May 10, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff alleges that she slipped and fell in a puddle located on an exterior landing of premises owned, managed and/or operated by defendants, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones here created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition and plaintiff denied that the cones were being used to prop open a door, as had been alleged by defendants' witness ( see Felix v. Sears, Roebuck & Co., 64 A.D.3d 499, 883 N.Y.S.2d 40 [2009]; Hilsman v. Sarwil Assoc., L.P., 13 A.D.3d 692, 786 N.Y.S.2d 225 [2004] ). Additionally, while the hearsay portions of a witness affidavit submitted in opposition to the motion, which referred to an unidentified person or persons having admitted prior notice of the condition, were inadmissible ( see Cassanova v. General Cinema Corp. of N.Y., 237 A.D.2d 155, 654 N.Y.S.2d 758 [1997]; Pascarella v. Sears, Roebuck and Co., 280 A.D.2d 279, 720 N.Y.S.2d 461 [2001] ), the witness's first hand account of providing defendants with notice of the condition at least 45 minutes before the accident raised triable issues of fact as to prior actual and constructive notice of the condition.