VARA v. BENDERSON DEVELOPMENT COMPANY INC (1999)

 Supreme Court properly denied the cross motion of defendant Benderson Development Company, Inc. (Benderson) for summary judgment dismissing the complaint against it.   Even assuming, arguendo, that Benderson met its initial burden of establishing lack of notice of the alleged dangerous condition, we conclude that plaintiffs raised a triable issue of fact concerning constructive notice of the dangerous condition.   The photographs of the pothole submitted by plaintiffs in opposition to the motion and cross motion establish that it was visible and apparent, and there is an issue of fact whether it existed for a sufficient length of time prior to the accident to permit Benderson's employees to discover and remedy the condition (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Zavaro v. Westbury Prop. Inv. Co., 244 A.D.2d 547, 664 N.Y.S.2d 611).   The court also properly denied the motion of defendant American Paving & Excavating, Inc. (American Paving) for summary judgment dismissing the complaint against it.   There is a triable issue of fact whether the pothole was in existence when American Paving conducted its inspection of the property and whether American Paving failed to observe it or, if it observed it, failed to patch it as required by its contract with Benderson.

Order unanimously affirmed with costs.

MEMORANDUM: