PERALTA v. HENRIQUEZ

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

Addys PERALTA, Plaintiff-Respondent, v. Raphael HENRIQUEZ, et al., Appellants, et al., Defendants.

Decided: March 18, 2002

A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, ANITA R. FLORIO and WILLIAM D. FRIEDMANN, JJ. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (John D. MacCartney and Anna Melhem of counsel), for appellants. Schachter & Levine, LLP, New York, N.Y. (Sandra D. Janin of counsel), for plaintiff-respondent.

In an action to recover damages for personal injuries, the defendants Raphael Henriquez and Aurora Henriquez appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County (Weiner, J.), dated December 7, 2000, as, upon a jury verdict finding them 82% at fault in the happening of the accident, is in favor of the plaintiff and against them.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

 Since the appellant Raphael Henriquez testified at trial that he permitted tenants and guests to park in the appellants' lot 24 hours per day, the appellants had a duty to provide adequate lighting in the lot at the time of the plaintiff's accident (see, Gallagher v. St. Raymond's Roman Catholic Church, 21 N.Y.2d 554, 289 N.Y.S.2d 401, 236 N.E.2d 632).   Therefore, the plaintiff sufficiently established a prima facie case of negligence against the appellants for the trial court to submit to the jury (see, Gallagher v. St. Raymond's Roman Catholic Church, supra;  Goldfarb v. Kzichevsky, 280 A.D.2d 583, 720 N.Y.S.2d 810;  Miccoli v. Kotz, 278 A.D.2d 460, 717 N.Y.S.2d 661;  Kurth v. Wallkill Assoc., 132 A.D.2d 529, 517 N.Y.S.2d 267).

 Because the plaintiff's case was founded on the premise that the appellants created the dangerous condition that led to the accident, notice was not an element of her claim (see, Cook v. Rezende, 32 N.Y.2d 596, 599, 347 N.Y.S.2d 57, 300 N.E.2d 428;  Septoff v. La Shellda Maintenance Corp., 242 A.D.2d 618, 662 N.Y.S.2d 549;  Saia v. Misrahi, 129 A.D.2d 621, 514 N.Y.S.2d 256;  Safran v. Man-Dell Stores, 106 A.D.2d 560, 483 N.Y.S.2d 370).   Accordingly, the appellants were not entitled to a jury charge on the issue of notice (see, Safran v. Man-Dell Stores, supra).

The record does not establish the existence of substantial juror confusion occasioned by the trial court's instructions which would warrant a new trial (see, Mattei v. Figueroa, 262 A.D.2d 459, 692 N.Y.S.2d 119).

The appellants' remaining contentions are either unpreserved for appellate review or without merit.

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