Norman v. Dunbar Partners

Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about December 6, 2001, which, in an action for personal injuries allegedly sustained when plaintiff fell over an uncovered drain on a walkway in a housing complex owned by defendant, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

An issue of fact as to whether defendant had notice of the allegedly uncovered hole on its property is raised by the affidavit and deposition testimony of plaintiff’s witness, a resident of the complex, that some four year prior to the accident she began to notice that the grating cover for this particular drain was at times halfway or entirely off, and that she complained about it to defendant four or five times, the last being about a year prior to the accident before she moved into another building in the complex. The testimony of defendant’s witness, an employee of its managing agent, that during the 18 months he worked at the complex prior to the accident he never saw a missing drain cover on his daily walk on the path where the subject drain is located, simply raises an issue of fact. Defendant offers no evidence of actual repairs. Concur — Andrias, J.P., Buckley, Sullivan, Ellerin and Lerner, JJ.