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PLAINTIFF ALLEGED A CRACKED WINDOW PANE BROKE AND FELL, INJURING HER HAND; THERE WAS EVIDENCE OF AT LEAST 33 INSTANCES WHERE A WINDOW IN DEFENDANT’S BUILDING WAS IN NEED OF REPAIR (A RECURRING DANGEROUS CONDITION), RAISING A QUESTION OF FACT WHETHER DEFENDANT HAD A DUTY TO INSPECT THE WINDOWS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive notice of a recurring condition, i.e., windows in need repair in defendant’s (Luna’s) building. Plaintiff alleged a cracked window shattered, injuring her hand:

Luna’s submissions, which included a transcript of the deposition testimony of its building superintendent, failed to eliminate all triable issues of fact as to whether it had constructive notice of a recurrent dangerous condition. The superintendent testified that in the period of approximately two years preceding the accident, Luna was made aware of 33 instances in which a window in the building needed to be repaired … . Moreover, the superintendent testified that it was “normal” for windows in the building to break. While “[a] general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition that caused the accident” …, the superintendent’s testimony regarding the frequency of specific complaints of window damage in the building raised triable issues of fact as to whether Luna had an obligation to inspect the windows … . Butnik v Luna Park Hous. Corp., 2021 NY Slip Op 07314, Second Dept 12-22-21

 

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