Smilinich v. Mays

—Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Dennis J. Smilinich (plaintiff) when he fell on rental property owned by defendant. Plaintiffs allege that the brick steps plaintiff was climbing “tilted”, causing him to fall. The steps had been repaired by defendant at some time 2 to 4 years prior to the incident. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Defendant has a duty to keep his premises in a reasonably safe condition (see, Basso v Miller, 40 NY2d 233, 241). Even assuming, arguendo, that defendant met his initial burden, we conclude that plaintiffs raised a triable issue of fact whether defendant had constructive notice of the alleged defect. Plaintiffs also raised an issue of fact whether the alleged defect resulted from a prior defective repair by defendant, in which case no notice is required (see, Princiotto v Materdomini, 45 AD2d 883, 884; 1A NY PJI 442 [3d ed 1999]). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.