LERNER v. LUNA PARK HOUSING CORP (2005)

In an action to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated October 7, 2003, which denied that branch of its motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff succeeded in rebutting the defendant's prima facie showing of entitlement to judgment as a matter of law.   While there were no witnesses to the decedent's fall, deposition testimony from the decedent's wife and the plaintiff, his son, regarding, inter alia, the trail of blood commencing in a puddle on a patch of ice and leading down a hallway to the decedent's apartment, provided sufficient circumstantial evidence to raise a triable issue of fact as to whether the decedent's fall was proximately caused by a patch of ice which the defendant allegedly negligently failed to remove (see Gayle v. City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758;  Sweeney v. D & J Vending, 291 A.D.2d 443, 737 N.Y.S.2d 388).   Moreover, the evidence offered by the plaintiff raised a triable issue of fact as to whether the subject patch of ice existed before the commencement of a snowstorm, and therefore whether the defendant could be charged with constructive notice of the dangerous condition (see Sweeney v. D & J Vending, supra at 443-444, 737 N.Y.S.2d 388).