Motion sequence numbers 002 and 003 are consolidated for disposition.

In motion sequence number 002, defendant Grand Palace Hotel at the Park, LLC d/b/a Dylan Hotel (Dylan Hotel) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it. In motion sequence number 003, defendant Dependable Glass & Mirror Corporation (Dependable) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against it.

On September 23, 2006, plaintiff Janet Brock (Brock) and her daughter checked into the Dylan Hotel, and were provided with room number 701, which did not have a bath. To accommodate Janet and her daughter, Dylan Hotel moved them to room 1101, which did have a bath. Brock testified at her examination before trial (EBT) that on September 24, 2006, the window in the room was open and, when she went to shut it, the window fell out of the frame and onto her head and onto her daughter's leg. Brock EBT, at 36-38. Brock further averred that, on the day prior to the accident, she notified the hotel staff that the window in the room was open and that there was a problem with the air conditioning, but no one ever came to the room to look at the problem. Id. at 31.

Brock's daughter, Amy Collins (Collins), provided an affidavit in which she states that, on the morning of the day of the accident, she personally spoke to someone at the hotel's front desk to let him know that no one had come to room 1101 to fix the window or the air conditioner. Collins further stated that she was told that the hotel only had a "skeleton crew," and that someone would go up to the room as soon as possible. Opp. Ex. B.

On the date of the accident, Dylan Hotel employed Jamie Lino (Lino) as an engineer. Lino was the first Dylan employee to respond to the accident. Lino EBT, at 33-34. Lino testified that, prior to the accident, he did not fix or repair any of the windows in any of the rooms at the hotel. Id. at 20. Lino also stated that, prior to the accident in question, there were no other [*2]instances of a window falling out of its frame in the hotel, nor was he aware of any incident in which a window had unintentionally flipped inwards. Id. at 87.

At the time of the accident, Dependable was engaged by Dylan Hotel on an as-needed basis to perform various glass repair work in the hotel. On or about October 27, 2005, Dependable sent an invoice to Dylan Hotel indicating that it had furnished and installed "one 7/8" unit sized at 40 x 55" and "two side latches" in room 1101. Dependable Motion, Ex. H. There is no other documentation showing that Dependable did any other work in room 1101 of the Dylan Hotel after October 27, 2005, approximately 11 months prior to the date of the accident.

Vincent Guglielmino (Guglielmino), a project manager for Dependable, was deposed in this matter. According to Guglielmino's review of the invoice, he stated that Dependable only replaced the glass in room 1101 on October 27, 2005, not the frame, but that the invoice also indicated that Dependable made some repairs to the window latches as well. Guglielmino EBT, at 48-50. He further testified that if, at the time the glass was being replaced, the frame was damaged, Dependable would not replace the frame, but that the frame would have to go back to the manufacturer. Id. at 51-52. However, Guglielmino also stated that, if the window latch were broken, it could cause the window to fall out of the frame. Id. at 52-53.

In the complaint, Brock asserts a cause of action against Dylan Hotel and Dependable based on negligence, and her husband, David Brock, asserts a cause of action against defendants based on loss of consortium.

In its cross claim, Dylan Hotel alleges that any injuries that may have been suffered by Brock were caused by the negligence of Dependable when it made repairs to the windows in room 1101 in the hotel.

In the instant motions, Dylan Hotel maintains that it had no constructive notice of the alleged dangerous condition of the window, and therefore, it cannot be held liable for Brock's injuries, and Dependable contends that it did not have exclusive possession and control of the room and/or the window, and so it cannot be held liable for Brock's injuries. Furthermore, Dependable also asserts that, even if it were negligent in the installation and repair of the window latches, its negligence was not the proximate cause of the accident.

DISCUSSION

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).

Dylan Hotel's motion for summary judgment seeking to dismiss the complaint as against it is denied.

"It is well established that owners and lessees have a duty to maintain their property in a reasonably safe condition under the existing circumstances." Waiters v Northern Trust Co. of [*3]New York, 29 AD3d 325, 326 (1st Dept 2006). However, in order to maintain an action alleging negligence against such owners and lessees, the proponent must submit evidence that the owner or lessee had actual or constructive knowledge of the dangerous condition that caused the accident, or that the owner or lessee caused or contributed to the dangerous condition. McKain v Metropolitan Transportation Authority, 274 AD2d 504 (2d Dept 2000); Birdsall v Montgomery Ward & Co., 109 AD2d 969 (3d Dept), affd 65 NY2d 913 (1985). "[I]t is the plaintiff's burden to show actual or constructive notice of a defect prior to the [occurrence]; otherwise the complaint must be dismissed." Figueroa v Goetz, 5 AD3d 164, 165 (1st Dept 2004).

In the case at bar, Brock testified that, on September 23, 2006, the day before the accident, she spoke to hotel staff about the air conditioning in the room not working and the window being open and not closing. Further, Collins also affirmed that she spoke to a hotel staff member at the front desk on the morning of the accident to complain about the window and the air conditioner in room 1101. Dylan Hotel has not provided any evidence disputing or contradicting these assertions, which raise a question of fact as to whether Dylan Hotel had actual prior knowledge of a problem with the window which it failed to address.

Dylan Hotel's argument is that it lacked constructive notice of any problem with the window, contending that the problem that caused the accident was a latent defect, for which constructive knowledge cannot be imputed. In support of this contention, Dylan Hotel cites Lee v Bethel First Pentecostal Church of America, Inc. (304 AD2d 798 [2d Dept 2003]). However, in that case, there was no evidence that the owner had any actual notice of a problem, and so is distinguishable from the case at bar in which there is uncontroverted testimony indicating that Dylan Hotel had actual prior knowledge of a problem with the window.

Based on the foregoing, Dylan Hotel's motion is denied.

Dependable's motion for summary judgment dismissing the complaint as against it, and dismissing the cross claims asserted against it, is denied.

Dependable's primary legal argument is that it cannot be held liable for Brock's injuries because it lacked exclusive possession and control over the window and the room. Dependable bases this argument on a holding in Angwin v SRF Partnership, LP (28 AD3d 593 [2d Dept 2006]), which stated, among other things, that such lack of possession and control negates liability. However, that holding related to a theory of recovery based on the doctrine of res ipsa loquitor. Although Brock does argue, in her opposition, a theory of liability based on the doctrine of res ipsa loquitor, this court finds such argument to be without merit, since many guests and hotel staff had been in the room in the 11 months intervening between Dependable's repairs and the date of the accident.

However, the Angwin case also states that "[i]f the [latch] was installed without due care, as the plaintiff alleges, [Dependable] could be held liable to the plaintiff as the creator of the dangerous condition." Id. at 593-594.

Dependable's own witness, Guglielmino, stated that a possible cause of the accident could be that a broken latch caused the window to fall out of its frame. Additionally, the complaint alleges that the cause of the accident was the improper maintenance and repair of the window.

In a motion for summary judgment, the burden is on the movant to present evidence demonstrating entitlement to judgment as a matter of law. Santiago v Filstein, 35 AD3d 184, supra. Dependable has failed to meet this burden by providing any support for its proposition [*4]that it could not be deemed negligent in its installation and repair of the window latch. As a consequence, Dependable's motion for summary judgment based on a theory of lack of possession and control of the room and the window is denied.

Dependable's alternate theory argued to support its summary judgment motion is that, even if it were negligent in the installation and repair of the window latches, such negligence is not the proximate cause of Brock's injuries. However, the question of proximate causation, once a plaintiff has established a prima facie case, is for the finder of fact to determine. Dardiarian v Felix Contracting Corp., 51 NY2d 308 (1980); Williams v New York City Transit Authority, 57 AD3d 976 (2d Dept 2008). In the instant matter, none of the parties has provided the court with sufficient evidence to determine what actually caused the window to fall out of its frame, much less what was a substantial factor in causing the injuries. Therefore, Dependable's motion for summary judgment based on a theory of lack of proximate cause is denied.

Based on the foregoing, that portion of Dependable's motion for summary judgment dismissing the cross claim is similarly denied for the above-stated reasons.

CONCLUSION

It is hereby

ORDERED that Grand Plaza Hotel at the Park, LLC d/b/a Dylan Hotel's motion, motion sequence number 002, seeking summary judgment dismissing the complaint as against it is denied; and it is further

ORDERED that Dependable Mirror & Glass Corporation's motion, motion sequence number 003, seeking to dismiss the complaint as against it, and to dismiss the cross claims asserted against it, is denied; and it is further

ORDERED that counsel for Grand Plaza Hotel at the Park, LLC shall serve a copy of this order with notice of entry within tenty days of entry on all counsel.

Dated: April 8,2010

ENTER:

_____________________________

Carol Robinson Edmead, J.S.C. [*5]