COSENZA v. 303 BEVERLY OWNERS CORP

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

John COSENZA, respondent-appellant, v. 303 BEVERLY OWNERS CORP., appellant-respondent.

Decided: August 22, 2006

ROBERT W. SCHMIDT, J.P., THOMAS A. ADAMS, DANIEL F. LUCIANO, and ROBERT A. LIFSON, JJ. Garcia & Stallone, Melville, N.Y. (Karl Zamurs of counsel), for appellant-respondent. Felicia Pasculli, P.C. (Raymond E. Kerno, Mineola, N.Y., of counsel), for respondent-appellant.

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated January 28, 2005, as denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff, a New York City Police Officer, allegedly was injured while investigating a report of a suspicious package on the roof of the defendant's premises.

 The Supreme Court properly denied summary judgment to both parties on the General Municipal Law § 205-e cause of action.   Pursuant to General Municipal Law § 205-e, a defendant may be held liable for personal injuries when those injuries are shown to be practically and reasonably connected to a violation by the defendant of a statute or code (see Galapo v. City of New York, 95 N.Y.2d 568, 572, 721 N.Y.S.2d 857, 744 N.E.2d 685;  Delio v. City of New York, 8 A.D.3d 325, 777 N.Y.S.2d 911;  Quinto v. New York City Tr. Auth., 7 A.D.3d 689, 776 N.Y.S.2d 835;  Williams v. City of New York, 256 A.D.2d 332, 681 N.Y.S.2d 340).   In this case, there are triable issues of fact as to whether the cited provisions of the New York City Building Code applied to the area where the plaintiff was injured and whether the defendant violated those provisions.

 Similarly, the Supreme Court properly denied summary judgment to both parties on the common-law negligence cause of action.   There are triable issues of fact as to whether the defendant created the allegedly defective condition, or had actual or constructive notice of that condition (see Crespi v. M.E.I.T. Assoc., LLC, 18 A.D.3d 495, 795 N.Y.S.2d 275;  Williams v. Century 21, 12 A.D.3d 364, 783 N.Y.S.2d 310;  Curiale v. Sharrotts Woods, 9 A.D.3d 473, 781 N.Y.S.2d 47;  Lee v. Bethel First Pentecostal Church of Am., 304 A.D.2d 798, 762 N.Y.S.2d 80).

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