

Diaz v NY Affordable Hous. DeKalb Assoc. LLC. (2017 NY Slip Op 01275)





Diaz v NY Affordable Hous. DeKalb Assoc. LLC.


2017 NY Slip Op 01275


Decided on February 16, 2017


Appellate Division, First 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 February 16, 2017

Friedman, J.P., Mazzarelli, Andrias, Feinman, Gesmer, JJ.


3116 306604/12

[*1]Lupe Diaz, Plaintiff-Respondent, Roberto Diaz, Plaintiff,
vNY Affordable Housing DeKalb Associates LLC., Defendant-Appellant.


Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for appellant.
Ferro, Kuba, Mangano, Skylar, PC, New York (Kenneth Eugene Mangano of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J., entered on or about April 18, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The court properly found that defendant failed to provide evidence concerning its inspection, maintenance or cleaning of the stairs where plaintiff fell and, therefore, failed to make a prima facie showing of the absence of notice of the liquid and debris on the step and of the loose stair (see Kalish v HEI Hospitality, LLC, 114 AD3d 444, 445 [1st Dept 2014]; Ceron v Yeshiva Univ., 126 AD3d 630, 631-632 [1st Dept 2015]).
Moreover, even if defendant satisfied its initial burden, the testimony of plaintiff's witnesses that wetness in the area was a recurring problem and that they had complained to the superintendent and to the management office about the loose and cracked stairs on the staircase was sufficient to raise triable issues of fact (see Bido v 876-882 Realty, LLC, 41 AD3d 311, 312 [1st Dept 2007]).
We have considered defendant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 16, 2017
DEPUTY CLERK


