Miranda v. New York City Housing Authority

Order, Supreme Court, Bronx County (Howard Silver, J.), entered August 24, 2001, which, in an action for personal injuries allegedly sustained when plaintiff fell in the stairwell of defendant’s apartment building, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion was properly denied, there being an issue of fact as to whether defendant had constructive notice of the alleged dangerous condition on the stairs. The affidavit of plaintiffs cousin submitted in opposition to the motion, while contradictory of some aspects of plaintiff’s testimony that do not bear on notice, is sufficient to raise an issue of fact as to whether the condition had existed for a sufficient length of time prior to the accident for defendant to have discovered and remedied it (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837; compare, Phillips v Bronx Lebanon Hosp., 268 AD2d 318). We also reject defendant’s argument that such affidavit should have been precluded. Defendant’s prior demand for a bill of particulars calling for the names of persons who “received [constructive] notice” of the alleged dangerous condition was at best confusing, and plaintiffs failure to interpret it as a demand for the names of persons who would testify to the length of time that the substance was on the stairs cannot be deemed willful or contumacious (compare, Masucci-Matarazzo v Hoszowski, 291 AD2d 208). Concur—Tom, J.P., Andrias, Buckley, Wallach and Lerner, JJ.