Lobsenzer v. Mintz

Appellate Division of the Supreme Court of the State of New York

May 21, 2001

Versions:283 A.D.2d 556

725 N.Y.S.2d 212

2001 N.Y. App. Div. LEXIS 5329

—In an action to recover damages for personal injuries and wrongful death, the defendants appeal from an order of the Supreme Court, Kings County (Jackson, J.), entered February 29, 2000, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendants failed to make a prima facie showing that they were entitled to judgment as a matter of law. There are triable issues of fact as to whether the defect in question was trivial, and, if not, whether the defendants had actual or constructive notice of the defective condition upon which plaintiffs decedent fell (see, Gordon v American Museum of Natural History, 67 NY2d 836; Roberts v Consolidated Edison, 273 AD2d 369; Fox v Kamal Corp., 271 AD2d 485).

The defendants’ remaining contentions are without merit. Bracken, P. J., O’Brien, Smith and Cozier, JJ., concur.