McPHERSON v. VAN KOUWENBERG (1999)

 Plaintiff commenced this action seeking damages for personal injuries she sustained when a grate over a window well near the front door to her apartment gave way beneath her.   The property was owned by defendants.   Supreme Court erred in granting defendants' cross motion for summary judgment dismissing the complaint.   Even assuming, arguendo, that defendants met their burden of establishing lack of notice (see, DiFusco v. Wal-Mart Discount Cities, 255 A.D.2d 937, 680 N.Y.S.2d 377;  cf., Cobrin v. County of Monroe, 212 A.D.2d 1011, 623 N.Y.S.2d 680), we conclude that the photographs submitted by plaintiff, depicting the area where she fell, raised a question of fact concerning constructive notice of the defect that “is best submitted [to] and evaluated by the jury” (Zavaro v. Westbury Prop. Inv. Co., 244 A.D.2d 547, 548, 664 N.Y.S.2d 611, citing Batton v. Elghanayan, 43 N.Y.2d 898, 899, 403 N.Y.S.2d 717, 374 N.E.2d 611;  see also, Kniffin v. Thruway Food Mkts., 177 A.D.2d 920, 921, 576 N.Y.S.2d 678;  Farrar v. Teicholz, 173 A.D.2d 674, 676-677, 570 N.Y.S.2d 329).

 Plaintiff is not entitled to preclusion based on defendants' alteration of the site.   The alteration was not performed to thwart the discovery order, of which defendants were unaware.   In light of the photographs depicting the site at the time of plaintiff's accident, plaintiff demonstrated no prejudice as a result of the alteration.   The court properly denied plaintiff's motion to renew because plaintiff failed to demonstrate a reasonable excuse for her failure timely to submit an expert's affidavit (see, Welch Foods v. Wilson, 247 A.D.2d 830, 669 N.Y.S.2d 109).

We modify the order, therefore, by denying defendants' cross motion and reinstating the complaint.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: