Practice point: The Appellate Division affirmed the denial of defendant's motion for summary judgment in this action where plaintiff alleges that the drop-down ladder on defendants' fire escape malfunctioned as he was descending to the street, causing his foot to be trapped and injuring him. Defendants failed to make a prima facie showing of the absence of any defect in the fire escape, or that they lacked constructive notice of the alleged defect. Their manager and superintendent testified that they did not service or test the fire escape prior to plaintiff's accident, and defendants did not produce any inspection reports.
In addition, defendants' contention that plaintiff's use of the fire escape to exit an apartment in a nonemergency situation was unforeseeable and unreasonable presents issues of fact for the jury.
Student note: As defendants made no showing of inspections of the fire
escape before the accident, they failed to show lack of constructive
notice as a matter of law, requiring denial of their motion regardless
of the sufficiency of plaintiff's opposing papers.
Case: Lombardi v Partnership 92 W., L.P., NY Slip Op 05258 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: An out-of-possession landlord.
