

Ortiz v All Lock & Glass Serv., Inc. (2014 NY Slip Op 07484)





Ortiz v All Lock & Glass Serv., Inc.


2014 NY Slip Op 07484


Decided on November 5, 2014


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on November 5, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.


2013-02146
 (Index No. 9052/10)

[*1]Roberto Ramos Ortiz, appellant, 
vAll Lock & Glass Service, Inc., et al., respondents (and a third-party action).


David P. Kownacki, P.C., New York, N.Y. (Andrew D. Leftt of counsel), for appellant.
James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for respondent All Lock & Glass Service, Inc.
Savona, D'Erasmo & Hyer, LLC, New York, N.Y. (Joseph F. X. Savona and Raymond M. D'Erasmo of counsel), for respondent 28-90 Review Avenue Associates, LLC.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated December 21, 2012, as granted those branches of the defendants' respective motions which were for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with one bill of costs, and those branches of the defendants' respective motions which were for summary judgment dismissing the complaint insofar as asserted against them are denied.
On January 15, 2009, the plaintiff allegedly was injured at his place of employment when he slipped and fell on a discarded truck windshield that was covered with snow. The windshield allegedly had been removed from a truck two days earlier, on January 13, 2009, and was left lying flat on the ground near a dumpster. The snow fell on January 14, 2009. The plaintiff commenced this action against the company that allegedly removed the windshield from the truck and left it on the ground, the defendant All Lock & Glass Service, Inc. (hereinafter All Lock), and the owner of the premises, the defendant 28-90 Review Avenue Associates, LLC (hereinafter 28-90 Review).
All Lock and 28-90 Review separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motions, and the plaintiff appeals.
That branch of All Lock's motion which was for summary judgment dismissing the [*2]complaint insofar as asserted against it should have been denied, because the evidence All Lock submitted in support demonstrated the existence of triable issues as to whether All Lock owed a duty to the plaintiff, and, if so, whether it created the alleged dangerous condition when it performed work on the premises on January 13, 2009 (see Confessore v Rossi Pharm., Inc., 119 AD3d 510, 511; Dixon v Superior Discounts & Custom Muffler, 118 AD3d 1487, 1487-1488; cf. Ash v City of New York, 109 AD3d 854, 855). Similarly, the evidence submitted by 28-90 Review demonstrated the existence of a triable issue of fact as to whether it had constructive notice of the alleged dangerous condition (see Farrel v Waldbaum's, Inc., 73 AD3d 846, 847; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599). Therefore, neither defendant demonstrated its prima facie entitlement to judgment as a matter of law. Accordingly, those branches of their motions should have been denied without regard to the sufficiency of the plaintiff's papers in opposition (see Palahnuk v Tiro Rest. Corp., 116 AD3d 748, 749).
BALKIN, J.P., CHAMBERS, MILLER and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


