MOORE v. 793 797 GARDEN STREET HOUSING DEVELOPMENT CORPORATION (2007)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about June 8, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly denied the motion for summary judgment in this action where plaintiff allegedly was caused to fall when, while descending a marble staircase, the stair upon which she stepped moved from its base.   Defendants failed to satisfy their initial burden of establishing a lack of notice as a matter of law inasmuch as their witness had no personal knowledge of the condition of the allegedly defective step, and defendants offered no evidence from their employees who were regularly at the property and dealt with tenant complaints, and could have testified regarding the absence of any complaints about the subject step and when it was last inspected or repaired (see Porco v. Marshalls Dept. Stores, 30 A.D.3d 284, 817 N.Y.S.2d 268 [2006];  Joachim v. 1824 Church Ave., 12 A.D.3d 409, 410, 784 N.Y.S.2d 157 [2004] ).   Furthermore, the record evidence including plaintiff's testimony that she complained to the superintendent that the steps were uneven and had broken chips, and that steps in the vicinity of the accident had been patched and grouted, and were the subject of violations issued by the Department of Housing Preservation and Development, raise triable issues regarding whether defendants had notice of the condition that caused plaintiff to fall (see O'Connor-Miele v. Barhite & Holzinger, Inc., 234 A.D.2d 106, 650 N.Y.S.2d 717 [1996] ).

We have considered defendants' remaining contentions and find them unavailing.