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

Jerrold O'GRADY, et al., Plaintiffs-Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Respondent.

Decided: March 30, 1999

NARDELLI, J.P., WALLACH, LERNER and RUBIN, JJ. Barry R. Strutt, for Plaintiffs-Appellants. Jeannine LaPlace, for Defendant-Respondent.

Order, Supreme Court, New York County (Richard Lowe III, J.), entered March 5, 1998, which granted defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

Plaintiff firefighter was injured when, while ascending stairs in response to an alarm at defendant's Bronx residential premises, he slipped on liquid leaking from an open bag of garbage.   He sued for damages under both statutory and common-law theories of negligence.

 General Municipal Law § 205-a creates a cause of action for firefighters where injury results from the negligent failure to comply with local ordinances, inter alia.   Alleged here are violations of various provisions of title 27 of the New York City Administrative Code, to wit:  § 27-127 (general requirement to maintain buildings and their parts in a safe condition), § 27-128 (owner responsibility for safe maintenance of a building and its facilities), and § 27-2011 (requirement of an owner to maintain the public parts of a building in a clean and sanitary condition).   Notice of the condition (Lusenskas v. Axelrod, 183 A.D.2d 244, 592 N.Y.S.2d 685, appeal dismissed 81 N.Y.2d 300, 598 N.Y.S.2d 166, 614 N.E.2d 729) can be inferred from evidence in the record of defendant's continuing battle with tenants who leave garbage in the common areas of the building (see, O'Connell v. Kavanagh, 231 A.D.2d 29, 662 N.Y.S.2d 1).

 While a common-law claim requires a greater threshold of notice of the hazardous condition, there was ample evidence in the record that tenants would leave garbage in bags in the common areas, and that vagrants who slept in those hallways and stairwells at night would break open the bags in search of usable items.   The ongoing pattern of such activity, along with the established routine of cleaning up and warning tenants, constituted constructive notice to defendant of this recurrent condition (Megally v. 440 West 34th St. Co., 246 A.D.2d 346, 667 N.Y.S.2d 716;  O'Connor-Miele v. Barhite & Holzinger, Inc., 234 A.D.2d 106, 650 N.Y.S.2d 717;  Alvarez v. Mendik Realty Plaza, 176 A.D.2d 557, 575 N.Y.S.2d 25, lv. denied 79 N.Y.2d 756, 583 N.Y.S.2d 191, 592 N.E.2d 799).

Plaintiffs have established viable claims under both statutory and common-law theories of recovery.