Lesman v. Weinrib

Nov 27, 1995
Versions:221 A.D.2d 601
634 N.Y.S.2d 179
1995 N.Y. App. Div. LEXIS 12445

—In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated May 10, 1994, as, in effect, denied his cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was allegedly injured when a malfunctioning elevator door suddenly and unexpectedly closed on her foot. The defendant, the owner of the building where the accident occurred, sought summary judgment dismissing the complaint solely on the ground that he had no actual or constructive notice of the defective condition.

The defendant’s contention that the court should have disregarded the plaintiffs opposing affidavit because it allegedly contradicted her prior deposition testimony is unpreserved for appellate review. The defendant never made a request that the court disregard the affidavit. In any event, the affidavit did not contradict the plaintiffs deposition testimony and the court did not err in considering it.

*602There was some evidence before the court that the alleged defect was apparent for a sufficient length of time prior to the accident to have permitted the defendant to discover and remedy it, thus creating an issue of fact as to whether the defendant had constructive notice of the defective condition (see, Williams v Southland Corp., 204 AD2d 717, 718). Consequently, the court properly denied the defendant’s cross motion. Bracken, J. P., Rosenblatt, Krausman and Florio, JJ., concur.