Morrone v. Chelnik Parking Corp.

• Decision Date: 13 January 2000
• Citation: 701 N.Y.S.2d 48,268 A.D.2d 268
• Court: New York Supreme Court — Appellate Division
• Parties: JOSEPH MORRONE, Respondent-Appellant,<BR>v.<BR>CHELNIK PARKING CORP. et al., Appellants-Respondents, and SOUTHBRIDGE TOWERS, INC., Respondent.

268 A.D.2d 268

701 N.Y.S.2d 48

JOSEPH MORRONE, Respondent-Appellant,

v.CHELNIK PARKING CORP. et al., Appellants-Respondents, and SOUTHBRIDGE TOWERS, INC., Respondent.

Decided January 13, 2000.

Concur — Rosenberger, J. P., Tom, Mazzarelli, Lerner and Friedman, JJ.

Plaintiff allegedly sustained injuries when he stepped into a drain, the removable cover of which was not sitting properly and wobbled. The accident occurred in a parking garage operated by the Chelnik defendants and located in a building owned by Southbridge. The cause of the defect allegedly affecting the drain cover is unknown. Plaintiff contends that the Chelnik defendants should be held accountable for failing to remedy the alleged hazard since there are circumstances upon which the Chelnik defendants may be held to have been on constructive notice of the hazard's existence. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837). While the Chelnik defendants met their burden as summary judgment movants to make a prima facie showing that the alleged hazard had not in fact been visible and apparent for a sufficient period prior to the accident (see, Goldman v Waldbaum, Inc., 248 AD2d 436, 437, lv denied 92 NY2d 805), summary judgment was not warranted in their favor because Mr. Arnone's affidavit and Mr. Rokicsak's deposition testimony were sufficient to raise factual issues as to whether the Chelnik defendants had constructive notice of the defective drain hole cover.

Mr. Rokicsak, the superintendent of the building, testified at his deposition that during the year preceding plaintiff's accident, he had seen the drain covers in the garage "in a condition other than level", and that he alerted Mr. Simmons, a Chelnik employee who runs the garage "that someone could trip", due to the hazard. Further, Mr. Arnone, plaintiff's friend, who was with him when he fell, submitted an affidavit which stated: "I know that this drain hole cover, as well as other drain hole covers in the garage area, had been broken for months prior to the accident" (emphasis supplied). These submissions were sufficient to create triable issues as to whether the allegedly defective drain cover was "visible and apparent" to the Chelnik defendants, or whether it "[e]xist[ed] for a sufficient length of time prior to...