MAGGIO v. Citicorp Mortgage, Inc., et al., Defendants. (2000)

Supreme Court, Appellate Division, First Department, New York.

Mary MAGGIO, et al., Plaintiffs-Respondents, v. CITIBANK, N.A., Defendant-Appellant, Citicorp Mortgage, Inc., et al., Defendants.

Decided: April 06, 2000

SULLIVAN, P.J., NARDELLI, ELLERIN, WALLACH and ANDRIAS, JJ.

James P. Tenney, for Plaintiffs-Respondents. Andrew R. Scott, for Defendant-Appellant.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered February 11, 1999, which, insofar as appealed from, denied defendant-appellant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

Evidence adduced on the motion shows that appellant, a bank and owner of the property where plaintiff, a prospective buyer, fell when a porch railing broke, had conducted inspections of the property prior to the accident that resulted in an internal written report noting that the porch needed repair. In addition, plaintiffs' architect's affidavit opined that the “severely rotten” wooden railing was an open and obvious condition that existed for at least a year prior to the accident. Such evidence suffices to raise an issue of fact as to whether appellant had actual or constructive notice of the alleged defective railing.

MEMORANDUM DECISION.

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