MONZAC v. 1141 ELDER TOWERS LLC (2020)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about August 1, 2018, which granted defendant's motion for a directed verdict, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for a new trial.

Plaintiff's trial evidence established prima facie that defendant had constructive notice of the water on the floor of the lobby of its building on which plaintiff allegedly slipped and fell (see Irizarry v. 15 Mosholu Four, LLC, 24 A.D.3d 373, 806 N.Y.S.2d 534 [1st Dept. 2005] ).  Plaintiff testified that at least four times before his accident, every few months, he observed water leaking from the ceiling onto the floor below in the area where he fell.  His former girlfriend, with whom he lived in the building, testified that before the date of the accident “there were leaks and then afterward it was leaking again.”  This testimony established that “an ongoing and recurrent dangerous condition existed in the area of the accident that was routinely left unaddressed by the landlord” (id. at 373, 806 N.Y.S.2d 534;  see Talavera v. New York City Tr. Auth., 41 A.D.3d 135, 136, 836 N.Y.S.2d 610 [1st Dept. 2007] ).  Issues of credibility were for the jury.

The trial court improvidently exercised its discretion in precluding the testimony of Henry Soto, defendant's building superintendent at the time of the accident, on the ground that it was prejudicial to defendant.  Defendant could not have been prejudiced or surprised by plaintiff's disclosure of Soto as a witness on the eve of trial, since Soto was defendant's employee at the time of the accident (see Sadler v. Brown, 108 A.D.2d 739, 484 N.Y.S.2d 905 [2d Dept. 1985];  O'Callaghan v. Walsh, 211 A.D.2d 531, 621 N.Y.S.2d 343 [1st Dept. 1995];  Wintermute v. Vandemark Chem., Inc., 134 A.D.3d 1482, 1483, 21 N.Y.S.3d 900 [4th Dept. 2015], lv dismissed 30 N.Y.3d 1041, 69 N.Y.S.3d 255, 91 N.E.3d 1234 [2017] ).

We find the remaining contentions unavailing.