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Aviles v. 2333 1st Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 8, 2009

DAVID AVILES, PLAINTIFF-RESPONDENT,
v.
2333 1ST CORP., DEFENDANT-APPELLANT.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered March 10, 2009, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Catterson, Renwick, Abdus-Salaam, JJ.

16234/05

Plaintiff does not contend that defendant created the alleged water hazard on the building's interior stairs that allegedly caused him to slip and fall, and defendant does not contest the existence of the hazard. Defendant's evidence established that it did not have actual notice of the hazard (see Campanella v Marstan Pizza Corp., 280 AD2d 418, 418 [2001]). Furthermore, defendant described its usual cleaning procedures regarding the stairs, but did not indicate that such procedures were followed on the day of the accident. Defendant failed to show the last time the stairs were inspected before plaintiff fell, and thus there is a question of fact on whether defendant had constructive notice of the complained of condition (see Moser v BP/CG Ctr. I, LLC, 56 AD3d 323, 324 [2008], citing, inter alia, Baptiste v 1626 Meat Corp., 45 AD3d 259 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091008

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