Opinion
15938 Index No. 21604/19 Case No. 2021–03922
05-12-2022
Enrique SIMO, Plaintiff–Respondent, v. The CITY OF NEW YORK et al., Defendants–Appellants.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Diana Lawless of counsel), for appellants. Burns & Harris, New York (Daniel Wright of counsel), for respondent.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Diana Lawless of counsel), for appellants.
Burns & Harris, New York (Daniel Wright of counsel), for respondent.
Gische, J.P., Scarpulla, Mendez, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered June 17, 2021, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to establish their prima facie entitlement to summary judgment in this action where plaintiff slipped and fell on a set of concrete steps in a New York City park. The record presents issues of fact as to whether the allegedly hazardous condition was open and obvious and not inherently dangerous (see Schwartz v. Kings Third Ave. Pharmacy, Inc., 116 A.D.3d 474, 475, 984 N.Y.S.2d 13 [1st Dept. 2014] ; Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 70, 773 N.Y.S.2d 38 [1st Dept. 2004] ). Defendants also did not demonstrate that they lacked actual or constructive notice of the condition, as they failed to proffer specific evidence as to when the staircase was last inspected. Rather, defendants relied only on vague testimony by a park supervisor that he would sometimes walk on the staircase during his inspection of the park (see Abraham v. Dutch Broadway Assoc. L.L.C., 192 A.D.3d 550, 550, 145 N.Y.S.3d 28 [1st Dept. 2021] ; Guo Ping Li v. Overseas Partnership Co., Inc., 176 A.D.3d 608, 609, 109 N.Y.S.3d 636 [1st Dept. 2019] ).
We have considered defendants’ remaining contentions and find them unavailing.