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

Said OMAAR, Plaintiff–Respondent, v. Efrain RODRIGUEZ, et al., Defendants–Appellants.


Decided: February 26, 2019

Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ. Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for appellants. Pecoraro & Schiesel, LLP, New York (Steven Pecoraro of counsel), for respondent.

Defendants building owners failed to establish entitlement to judgment as a matter of law in this action where plaintiff was injured when he fell down allegedly unlighted stairs leading to a basement in the subject building.  Defendants failed to show that they did not create or have actual or constructive knowledge of the unlighted vestibule.  Although defendant Efrain Rodriguez testified as to a general maintenance routine that he would engage in at the building, he did not specifically remember whether he inspected the area on the day before the accident (see Vargas v. Cadwalader Wickersham & Taft, LLP, 147 A.D.3d 551, 552, 46 N.Y.S.3d 784 [1st Dept. 2017];  Dylan P. v. Webster Place Assoc., L.P., 132 A.D.3d 537, 538, 18 N.Y.S.3d 42 [1st Dept. 2015], affd 27 N.Y.3d 1055, 35 N.Y.S.3d 292, 54 N.E.3d 1163 [2016] ).

Even if defendants met their prima facie burden, plaintiff's opposition raised triable issues as to whether the building's vestibule area was dangerous and violated Multiple Dwelling Law § 37, because of the broken light fixture, and whether defendants were aware of the condition for a sufficient period of time to have remedied it.  Plaintiff's brother and cousin, who was a resident of the building, stated that the fixture was broken for a week before the accident, and plaintiff's brother stated that Efrain acknowledged that he was aware of the problem.  They also disputed defendants' claims that there were fixtures at the top of the staircase leading to the second floor, at the bottom of the staircase leading to the basement, and on the exterior of the building.

Furthermore, it is noted that the motion court ameliorated any prejudice caused by plaintiff's failure to properly respond to discovery requests by vacating the note of issue and permitting defendants to depose the two belatedly identified witnesses.