JABBOUR v. FINNEGAN MOVING WAREHOUSE CORPORATION (2002)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 14, 2002, which, to the extent appealed from, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 The circumstantial evidence was sufficient to permit a jury to infer that defendant's employee cut the legs of a railing in order to facilitate the moving of furniture, and failed to replace the railing properly, thereby causing plaintiff to fall and injure himself (see Schneider v. Kings Highway Hosp. Ctr., 67 N.Y.2d 743, 744-745, 500 N.Y.S.2d 95, 490 N.E.2d 1221;  Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 491 N.Y.S.2d 151, 480 N.E.2d 740).   Accordingly, there was a triable issue of fact as to whether defendant created the allegedly dangerous condition, and plaintiff was not required to prove that defendant had actual or constructive notice (see Martinez v. City of New York, 224 A.D.2d 242, 243, 637 N.Y.S.2d 706).