Kormusis v. Jeffrey Gardens Apartment Corp.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Schulman, J.), entered May 25, 2005, which, upon the granting of the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law, made at the close of her case, is in favor of the defendants and against her dismissing the complaint. Ordered that the judgment is reversed, on the law, the motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of liability, with costs to abide the event. The plaintiff slipped and fell on the staircase leading from her apartment to the lobby of her apartment building, which was owned by the defendant Jeffrey Gardens Apartment Corp. and managed by the defendant SMS Management (collectively the defendants). Thereafter, she sued the defendants, alleging, inter alia, that the terrazzo stairs leading from her apartment to the building’s lobby were wet and slippery due to melting snow tracked in from the outside, and that this defective condition caused her to fall. Prior to the start of the liability phase of this bifurcated trial, the Supreme Court, inter alia, granted the defendant’s motion to preclude the plaintiff’s expert from testifying as to the need for anti-skid or safety strips on the aforementioned stairs. At the close of the plaintiffs proof at the trial on the issue of liability, the court granted the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law on the ground that the plaintiff failed to make out a prima facie case showing that the defendants had constructive notice of the alleged defect. This was error. We therefore reverse the judgment and grant the plaintiff a new trial on the issue of liability. [393] When, as here, only constructive notice is alleged, the plaintiff must show that the defect existed for a sufficient time to have allowed the property owner the opportunity to discover and cure it (see e.g. Gonzalez v Jenel Mgt. Corp., 11 AD3d 656 [2004]; see generally Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]). At trial, the proof showed that more than six inches of snow fell on the day before the plaintiffs accident and that the snowfall ended more than 11 hours prior to the plaintiffs accident. Moreover, there was proof that there was snow on the ground outside and that the pavement outside was wet. There was also some proof that the defendants were aware that water was being tracked into the lobby and that the stairs themselves might be wet, as shown by the placement of a floormat in the lobby of the plaintiffs building. Viewed in the light most favorable to the plaintiff, we find that there was sufficient evidence to submit to the jury the issue of whether or not the defendants had constructive notice of the allegedly defective condition (see Bracco v Puntillo Ltd. Partnership, 19 AD3d 624 [2005]; McGill v Bohack Corp., 69 AD2d 853 [1979]; Young v City of New York, 33 AD2d 915 [1970]; cf. Palermo v Roman Catholic Diocese of Brooklyn, N.Y., 20 AD3d 516 [2005]; Murphy v Lawrence Towers Apts., LLC, 15 AD3d 371 [2005]; Ford v Citibank, N.A., 11 AD3d 508 [2004]). Since we are remitting this matter for a new trial on the issue of liability, we note that it was error to have precluded the plaintiffs expert from testifying as to the need for safety or anti-skid strips on the terrazzo stairs (see generally Ochoa v Jacobsen Div. of Textron, Inc., 16 AD3d 393 [2005]; Wichy v City of New York, 304 AD2d 755 [2003]; see also Ford v Citibank, N.A, supra at 509). Florio, J.P., Miller and Goldstein, JJ., concur.