Palomo v. 175th St. Realty Corp.

• Decision Date: 20 December 2012
• Citation: 101 A.D.3d 579,957 N.Y.S.2d 49,2012 N.Y. Slip Op. 08811
• Parties: Sean PALOMO, Plaintiff–Respondent–Appellant, v. 175TH STREET REALTY CORP., et al., Defendants–Appellants–Respondents.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 579
957 N.Y.S.2d 49
2012 N.Y. Slip Op. 08811

Sean PALOMO, Plaintiff–Respondent–Appellant,
v.
175TH STREET REALTY CORP., et al., Defendants–Appellants–Respondents.

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

Dec. 20, 2012.

[957 N.Y.S.2d 50]

Rivkin Radler LLP, Uniondale (Merril S. Biscone of counsel), for appellants-respondents.

Barry E. Greenberg, P.C., Farmingdale (Barry E. Greenberg of counsel), for respondent-appellant.

TOM, J.P., SWEENY, DEGRASSE, MANZANET–DANIELS, CLARK, JJ.

[101 A.D.3d 580]Order, Supreme Court, Bronx County (John A. Barone, J.), entered March 9, 2012, which denied defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for, inter alia, an order striking defendants' answer for spoliation of key evidence, directing defendants and their insurance carriers to produce their files for in camera inspection, and granting him summary judgment as to liability, unanimously modified, on the law, to grant defendants' motion to the extent it sought dismissal of the complaint as against defendants Steven Padernacht and Michael Padernacht, and otherwise affirmed, without costs.

[957 N.Y.S.2d 51]

Defendants satisfied their burden on summary judgment by presenting evidence demonstrating that they did not create the defective condition of the marble staircase landing that collapsed under plaintiff, and lacked actual or constructive notice thereof. In opposition, plaintiff presented evidence that the landing was visibly cracked for an extended period of time and wobbled when stepped on, thereby raising an issue of fact as to whether defendants had constructive notice of the defective condition for a sufficient period of time before the landing collapsed to be able to make repairs. However, to the extent that the motion sought dismissal as against the Padernacht defendants individually, it should have been granted, inasmuch as that portion of the motion was unopposed by plaintiff, and there is no evidence that the individual defendants personally participated in any malfeasance or misfeasance constituting an affirmative tortious act ( see Peguero v. 601 Realty Corp., 58 A.D.3d 556, 558–559, 873 N.Y.S.2d 17 [1st Dept.2009] ).

Defendants' claim that the affidavits of three notice witnesses should be disregarded because they were not timely disclosed is unpersuasive since one witness was a former employee of defendants, and the other two were identified by plaintiff or his...