DENYSSENKO v. PLAZA REALTY SERVICES INC (2004)

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

Maria DENYSSENKO, Plaintiff-Respondent, v. PLAZA REALTY SERVICES, INC., Defendant-Appellant.

Decided: June 29, 2004

TOM, J.P., ANDRIAS, WILLIAMS, MARLOW, GONZALEZ, JJ.

Boeggeman, George, Hodges & Corde, P.C., White Plains (Paul Edward Svensson of counsel), for appellant. Hill, Langsam & Moin, LLP, New York (Cheryl Eisberg Moin of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about October 7, 2003, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The photographic evidence of the alleged hazard in defendant's parking lot to which plaintiff attributes her harm, showing a jagged-edged pothole filled with water, does not permit the conclusion that the defect was trivial as a matter of law (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489). The pictures of the apparently long-standing defect, taken within two weeks of plaintiff's accident, and which plaintiff testified depicted the complained-of hazard as it existed at the time of the accident, were properly considered on the motion and raised a triable issue of fact as to whether defendant had constructive notice of the defect (see Karten v. City of New York, 109 A.D.2d 126, 490 N.Y.S.2d 503).

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