NAPOLI v. MAZZA (1999)

In an action to recover damages for personal injuries, etc., (1) the defendant Michael Mazza appeals from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), dated August 10, 1998, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and (2) the plaintiffs cross-appeal from stated portions of the same order.

ORDERED that the cross appeal is dismissed as abandoned;  and it is further,

ORDERED that the order is affirmed insofar as appealed from, and it is further,

ORDERED that the plaintiffs are awarded one bill of costs payable by the defendant Michael Mazza.

On February 22, 1995, the plaintiff Joann Napoli exited the defendant Home Variety Store and was about to descend the steps when the heel of her shoe got caught in a gap between two slate slabs on the top landing and she fell.   The Supreme Court properly denied the motion of the defendant Michael Mazza, the owner of the premises, for summary judgment dismissing the complaint insofar as asserted against him.

After the defendant Mazza made out a prima facie case for summary judgment, Mrs. Napoli sufficiently identified the defective condition which allegedly caused her fall both at her deposition and in her affidavit in opposition to his motion.   The expert's affidavit and report submitted in opposition to the motion was sufficient to raise a triable issue of fact as to whether Mazza had constructive notice of the alleged defect (see, Lesman v. Weinrib, 221 A.D.2d 601, 634 N.Y.S.2d 179).

MEMORANDUM BY THE COURT.