TAHERI v. 1878 LEXINGTON AVENUE ASSOCIATES

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

Seyed TAHERI, et al., Plaintiffs-Respondents, v. 1878 LEXINGTON AVENUE ASSOCIATES, etc., Defendant-Appellant.

Decided: February 28, 2006

TOM, J.P., MAZZARELLI, SULLIVAN, SWEENY, MALONE, JJ. Marshall, Conway & Wright, P.C., New York (Amy S. Weissman of counsel), for appellant. Oshman & Mirisola, LLP, New York (Charles Mirisola of counsel), for respondents.

Order, Supreme Court, New York County (Louis B. York, J.), entered April 25, 2005, which denied defendant's motion for summary judgment, unanimously affirmed, without costs.

Plaintiff Seyed Taheri was injured when he turned on an allegedly defective boiler in defendant's building.   Defendant failed to satisfy its burden of demonstrating a prima facie entitlement to summary judgment as a matter of law (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).   In any event, plaintiffs submitted sufficient evidence, including the testimony and affidavit of the person who had requested assistance in turning on the boiler, to raise a question of fact as to whether defendant had notice of the defective condition.

We have considered defendant's remaining arguments and find them unavailing.