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

Michael A. SCHIAVONE, et al., Plaintiffs–Respondents, v. SEAMAN ARMS, LLC, Defendant–Appellant.


Decided: December 12, 2019

Richter, J.P., Manzanet–Daniels, Webber, Gesmer, JJ. Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellant. Hasapidis Law Office, Scarsdale (Annette Hasapidis of counsel), for respondent.

Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered September 13, 2018, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff firefighter Michael Schiavone was injured while responding to a fire at a residential building owned by defendant.  Schiavone testified that he was on the building's roof and as he was attempting to remove a piece of the roof that a fellow firefighter had cut open to allow for ventilation, his momentum carried him backwards and he stepped on something that caused him to fall.  Although Schiavone did not initially see what caused his fall, he stated that when he stood up, he noticed that there was debris, including roofing materials and pieces of wood, which appeared to be from prior repair work on the roof.

The court properly denied the motion for summary judgment, since defendant failed to satisfy its prima facie burden of showing that it did not have constructive notice of the debris on the roof.  Defendant did not offer evidence as to when the roof was last inspected or cleaned prior to plaintiff's fall, even though its resident manager testified that he would routinely inspect the roof about once a month (see DiMarzo v. Jones Lang LaSalle Ams. Inc., 129 A.D.3d 490, 9 N.Y.S.3d 872 [1st Dept. 2015];  Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011]).  Although Schiavone testified that initially, he did not know what caused him to fall, he later consistently testified that his fall was caused by debris from a prior roof repair, which presents a triable issue of fact (see Figueroa v. City of New York, 126 A.D.3d 438, 440, 5 N.Y.S.3d 62 [1st Dept. 2015];  Cuevas v. City of New York, 32 A.D.3d 372, 373, 821 N.Y.S.2d 37 [1st Dept. 2006]).

Furthermore, since defendant was unable to satisfy its prima facie burden as to plaintiffs' common-law negligence claim, it was not entitled to dismissal of plaintiffs' claims pursuant to General Obligations Law § 11–106 and General Municipal Law § 205–a (see Jensen v. Oak Point Assets, 295 A.D.2d 114, 114–115, 742 N.Y.S.2d 821 [1st Dept. 2002];  Lusenskas v. Axelrod, 183 A.D.2d 244, 248, 592 N.Y.S.2d 685 [1st Dept. 1992], appeal dismissed 81 N.Y.2d 300, 598 N.Y.S.2d 166, 614 N.E.2d 729 [1993]).