SCALA v. PORT JEFFERSON FREE LIBRARY (1998)

Supreme Court, Appellate Division, Second Department, New York.

Sheila SCALA, et al., Appellants, v. PORT JEFFERSON FREE LIBRARY, Respondent.

Decided: November 30, 1998

Before O'BRIEN, J.P., PIZZUTO, JOY and GOLDSTEIN, JJ. Pulvers, Pulvers, Thompson & Kutner, P.C., New York, N.Y. (Amy B. Klauber of counsel), for appellants. Alio, Ronan, McDonnell & Kehoe, Melville, N.Y. (Dawn C. DeSimone and James S. Kehoe of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 2, 1997, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

 The plaintiffs allege that the plaintiff Sheila Scala tripped and fell on a broken slate walkway.   The defendant's submissions in support of its motion for summary judgment merely demonstrated that it had no actual notice of any condition which it deemed “dangerous or hazardous”.   The defendant failed to demonstrate the absence of an actionable defect (see, Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Elam v. New York Tr. Auth., 183 A.D.2d 599, 586 N.Y.S.2d 485;  Cruz v. City of New York, 201 A.D.2d 606, 607 N.Y.S.2d 969).   Moreover, the defendant did not establish lack of actual and constructive notice of the nontransient defect which Mrs. Scala claimed caused her to fall (see, Moore v. New York City Hous. Auth., 251 A.D.2d 15, 672 N.Y.S.2d 712).   The defendant was required to demonstrate that it did not know of the alleged defect and that it was not visible or apparent for a sufficient length of time for it, in the exercise of reasonable care, to remedy the defect (see, Kyung Sook Park v. Caesar Chemists, 245 A.D.2d 425, 666 N.Y.S.2d 679;  Cobrin v. County of Monroe, 212 A.D.2d 1011, 623 N.Y.S.2d 680).   The defendant failed to do so.

 In any event, the photographs of the alleged defect submitted by the plaintiffs in opposition to the defendant's motion established the existence of issues of fact (see, Zavaro v. Westbury Prop. Inv. Co., 244 A.D.2d 547, 664 N.Y.S.2d 611;  Ferlito v. Great S. Bay Assocs., 140 A.D.2d 408, 409, 528 N.Y.S.2d 111;  see also, Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717, 374 N.E.2d 611).

MEMORANDUM BY THE COURT.