HIGHTOWER v. EXG 332 W44 LLC (2019)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered July 25, 2018, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that, while working in a garage owned or leased by defendants, she was struck on the head by a parking gate arm that had been stuck in an upright position and descended as she was walking under it.  Defendants demonstrated that they did not create or have actual notice of the particular defective condition by submitting evidence that the parking gate complied with applicable standards and that there was no record of similar previous malfunctions with the gate (see Bazne v. Port Auth. of N.Y. and N.J., 61 A.D.3d 583, 583–84, 877 N.Y.S.2d 321 [1st Dept. 2009] ).

However, the record does not permit resolution of the issue of defendants' constructive knowledge of a defective condition as a matter of law.  Defendants' facility manager acknowledged that the parking gate arm sometimes gets stuck in an upright position, and defendants' maintenance records reflect a call made to the repairs department and a request for service to the parking gate's controller two days before the accident, but there is no record of an attempt to address the service request for the parking gate until after the accident (see Derouen v. Savoy Park Owner, L.L.C., 109 A.D.3d 706, 707, 971 N.Y.S.2d 2 [1st Dept. 2013];  Camaj v. E. 52nd Partners, 215 A.D.2d 150, 151, 626 N.Y.S.2d 110 [1st Dept. 1995] ).

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