MUNOZ FAMILIA v. 42 HOLDING CORPORATION (2006)

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

Maciel MUNOZ, an infant, by her mother, Maria Josepina FAMILIA, Plaintiffs-Respondents, v. 42 HOLDING CORPORATION, Defendant-Appellant.

Decided: June 29, 2006

SULLIVAN, J.P., WILLIAMS, CATTERSON, McGUIRE, JJ.

Leahey & Johnson, P.C., New York (James P. Tenney of counsel), for appellant. Martin R. Munitz, New York, for respondents.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered December 9, 2005, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant met its prima facie burden of establishing lack of notice that a child no more than seven years of age resided in the subject apartment. However, based on multiple repairs allegedly made in the apartment by the superintendent, and the fact that plaintiffs and the superintendent lived on the same floor, plaintiffs raised material issues of fact as to whether defendant had constructive notice that such a child lived in the apartment (see Woolfalk v. New York City Hous. Auth., 263 A.D.2d 355, 692 N.Y.S.2d 386 [1999]; cf. Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 649 N.Y.S.2d 115, 672 N.E.2d 135 [1996] ).

We have considered defendant's other arguments and find them unavailing.

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