COX v. FOSTER APARTMENT GROUP

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

Earle COX, Respondent, v. FOSTER APARTMENT GROUP, L.P., et al., Appellants.

Decided: October 29, 2001

CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. Dubow & Smith (Israelson & Gold, Plainview, N.Y. [Jeffrey B. Gold], of counsel), for appellants. Rubenstein & Rynecki (Scott Rynecki and Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Julie Mark] of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (Dowd, J.) dated July 31, 2000, which, upon a jury verdict finding them 100% at fault in the happening of the accident, is in favor of the plaintiff and against them in the principal sum of $220,000 ($85,000 for past pain and suffering and $135,000 for future pain and suffering).

ORDERED that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

The plaintiff failed to present legally sufficient evidence that the fire escape from which he fell was defective, or of actual or constructive notice of any defect.   Indeed, the plaintiff testified at the trial that the fire escape “seemed perfect”.   The photograph of the fire escape introduced into evidence indicates that the fire escape was painted an orange rust color.   There is no evidence in the record that the fire escape was rusty or defective in any way or that the defendants should have discovered and remedied any defect (see, Batton v. Elghanayan, 43 N.Y.2d 898, 901, 403 N.Y.S.2d 717, 374 N.E.2d 611;  Stumacher v. Waldbaum, 274 A.D.2d 572, 716 N.Y.S.2d 573).   Therefore, the complaint must be dismissed.

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