Jones v 550 Realty Hgts., LLC, 2011 NY Slip Op 08491 [89 AD3d 609]

November 22, 2011

Appellate Division, First Department

— [*1]

Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for appellants.

Thomas Torto, New York (Jason R. Levine of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered September 23, 2010, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants’ failed to meet their initial burden of demonstrating entitlement to judgment as a matter of law on the issue of whether they lacked constructive notice that the subject step was worn, because they failed to address the allegation in their moving papers ( see Sanchez v Irun , 83 AD3d 611 , 611-612 [2011]; James v Loran Realty V Corp. , 61 AD3d 561 , 562 [2009]). Defendants rely on the portion of plaintiff’s deposition in which he testified that a puddle caused him to fall, however, he also testified that the worn condition of the step could have contributed to his accident ( see Ruffin v Chase Manhattan Bank, N.A. , 66 AD3d 549 , 549-550 [2009]; Garcia v New York City Tr. Auth. , 269 AD2d 142 [2000]). Concur—Moskowitz, J.P., Renwick, DeGrasse, Abdus-Salaam and RomÁn, JJ..