In Perez v. 2305 Univ. Ave., LLC, the plaintiff-decedent was injured when his bedroom ceiling collapsed on him. The building moved for summary judgment on the basis that they did not have notice of the allegedly defective ceiling, never received any complaints about the ceiling and never made any repairs to the ceiling. Meanwhile, plaintiff testified that there were previous instances of collapsing ceilings, water damage and repeated complaints to the defendant. The defendant argued that plaintiff’s testimony was insufficient and irrelevant to establish notice.

In affirming the trial court’s denial of the motion, the First Department emphasized that the defendant simply offered conclusory, self-serving testimony, without any work or business records in support of their position that they did not have notice of the allegedly hazardous condition. It was further noted that the defendant’s witness acknowledged prior water leaks and the unlawful use of a washing machine by the tenant in the apartment above the decedent’s, raising an issue as to whether the defendant breached a duty to inspect areas of potential damage. The decision highlights the importance of offering documentary support – as well as deposition testimony – when seeking to establish that a defendant did not have notice of an allegedly defective condition.

Thanks to Lora Gleicher for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08006.htm