Garcia v. U-Haul Co.

Mar 10, 2003
Versions:303 A.D.2d 453
755 N.Y.S.2d 900

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated January 31, 2002, as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff Grisel Garcia allegedly tripped over, and fell onto, a metal beam lying on the second floor of a U-Haul storage facility in Brooklyn. The defendant moved for summary judgment, claiming that it neither created nor had actual or constructive notice of the allegedly dangerous condition. The Supreme Court denied the motion. We affirm.

It is well established that a plaintiff in a slip and fall case must demonstrate that the defendant either created the defective condition or had actual or constructive notice of it (see e.g. Goldman v Waldbaum, Inc., 248 AD2d 436 [1998]). A defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition (see Freund v Ross-Rodney Hous. Corp., 292 AD2d 341 [2002]; Osorio v Wendell Terrace Owners Corp., 276 AD2d 540 [2000]; McLaughlan v Waldbaums, Inc., 237 ÁD2d 335 [1997]). Here a customer service representative at the facility testified that he had observed beams on the floor “once in a while,” then stated that he saw beams on the ground or broken off about once or twice a month. Under such circumstances, a trier of fact could reasonably infer that the defendant had actual notice of such a recurring condition. Therefore, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.