VEHDIN BAJRIC AND EMINA BAJRIC INDIVIDUALLY AND AS HUSBAND AND WIFE PLAINTIFFS RESPONDENTS v. ESTATE OF ZEHRA HETO BY FARUK HETO ADMINISTRATOR DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries sustained by Vehdin Bajric (plaintiff) when he was removing a porch on a two-family residence then owned by Zehra Heto (decedent).   Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the common-law negligence claim.   Plaintiffs allege that plaintiff's injury was caused by the defective condition of the premises, and we conclude that defendant failed to meet its initial burden of establishing that decedent lacked actual or constructive notice of the alleged defective condition (see Shrout v Rochester Gas & Elec. Corp., 77 AD3d 1372, 1373).   Because defendant failed to meet its initial burden, it is of no consequence that the court rejected plaintiffs' opposing papers as untimely (see Roushia v. Harvey, 276 A.D.2d 970, 972).

Frances E. Cafarell

Clerk of the Court