KRAUS v. [And A Third Party Action]. (1999)

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about May 21, 1998, which denied defendants-appellants' motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In light of the discrepancy between the deposition testimony of defendant A & P's deposition witness and the incident report prepared at its instigation, there remains a triable issue of fact as to whether defendants had notice of the alleged defective condition to which plaintiff attributes her accident and injury.   Defendant American Revolving Door's deposition witness did not have sufficient knowledge of the relevant facts to eliminate that factual issue.   Accordingly, since the record evidence does not establish, as a matter of law, that defendants were without actual or constructive notice of the alleged hazard, the motion and cross motion for summary judgment dismissing the complaint were properly denied (see, Giambrone v. New York Yankees, 181 A.D.2d 547, 548, 581 N.Y.S.2d 756).

MEMORANDUM DECISION.