SUMMARY JUDGMENT DENIED TO DEFENDANT WHERE ISSUE OF FACT IF IT HAD NOTICE OF SAND BY OUTSIDE STAIRS OF SCHOOL

Court: Supreme Court, Appellate Division, First Department, New York

Case: Norma Iris Maldonado v. The City of New York

Date: March 1, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 2, 2010, which, to the extent appealed from as limited by the briefs, in this action for personal injuries allegedly sustained when plaintiff slipped and fell on sand and debris as she descended the exterior staircase of a school building, denied the motion of defendant New York City Board of Education for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Although defendant's submissions in support of the motion, including the testimony of the custodian of the school, indicated that the area of the accident was inspected and cleaned on the morning of the accident, plaintiff's fall did not occur until after 7 P.M. and there was evidence of ongoing construction in the area of the stairs. Under these circumstances, defendant failed to meet its initial burden of showing that it did not have constructive notice of the alleged dangerous condition (see Nugent v. 1235 Concourse Tenants Corp., 83 A.D.3d 532, 920 N.Y.S.2d 660 [2011]; Edwards v. Wal-Mart Stores, 243 A.D.2d 803, 662 N.Y.S.2d 855 [1997]; compare DeJesus v. New York City Hous. Auth., 53 A.D.3d 410, 861 N.Y.S.2d 31 [2008], affd. 11 N.Y.3d 889, 873 N.Y.S.2d 259, 901 N.E.2d 752 [2008]).

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