The defendant, landlord Angela M. Bartusiacivius, moves for an order granting summary judgment pursuant to CPLR § 3212, dismissing the plaintiff's complaint. The plaintiff alleges that she sustained personal injuries while she was a tenant in the defendant's property. Defendant argues that she bears no liability for the alleged personal injuries purportedly sustained by the plaintiff when a cabinet fell from the bathroom wall which she owned. The defendant's motion is denied in its entirety.

Plaintiff and tenant, Jessica Murphy ("Murphy"), brings this action to recover for personal injuries allegedly sustained as a result of an unsafe condition located at defendant and landlord, Angela M. Bartusiacivius's ("Bartusiacivius") property. On August 4, 2004, Murphy was leasing an apartment from Bartusiacivius located at 82 Greenvalley Road, Staten Island, NY. Murphy claims while opening the door to the bathroom cabinet to get her perfume, the cabinet was dislodged from the wall, which resulted in the cabinet falling onto plaintiff's toe causing multiple lacerations and fractures. Following the incident, a certified home inspector was hired by plaintiff to inspect premises and stated in an affidavit that installation was unsafe. Defendant contends that she did not install the bathroom cabinet herself, but was installed by the previous [*2]tenants. Defendant also asserts that there was a two month period between the prior tenants moving out and Murphy moving into the apartment. It was during that time that the defendant did a walk through of the apartment, however she did not physically touch or inspect the bathroom cabinet installed by the previous tenant, but visually observed it along with the rest of the apartment.

The Note of Issue was filed on January 13, 2011, and defendant's motion for Summary Judgment was served by mail on March 14, 2011.

The defendant, Bartusiacivius, is moving for summary judgment to dismiss the plaintiff's complaint. To be entitled to summary judgment, the defendant must show a prima facie case, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises.^[FN1] Summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable.^[FN2]

Plaintiff opposes defendant's motion for summary judgment on multiple grounds. First that the motion was filed in an untimely manner. CPLR � 3212 requires that a motion for summary judgment be filed no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the Note of Issue. However, the Thirteenth Judicial District, Richmond County Supreme Court Uniform Civil Term Rules on Decision and Motion Requirments (4) provides "A motion for summary judgment must be made within sixty days of the filing of the Note of Issue. This date may not be extended by the parties without court approval." In this instance the Note of Issue was filed with the court on January 13, 2011. On March 14, 2011, sixty days after the Note of Issue was filed, an affirmation of service by mail for the motion for summary judgment was made. Plaintiff asserts motion is untimely as it was not served within the sixty-day prescribed period. However, in this case, "service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period." ^[FN3] Hence, motion was served within a timely manner.

Plaintiff also contends that there are triable issues of fact to be determined. The defendant movant, claims that she bears no liability for plaintiff's injuries, as she had no notice, nor opportunity to cure the purported defect. She testified that her tenant had never complained or reported any problems with regard to the cabinet. Furthermore, the New York Court of Appeals in Gordon v. American Museum of Natural History, upheld the jury verdict where the [*3]plaintiff slipped on defendant's entrance stairs due to a piece of white wax paper, which allegedly came from a nearby concession stand.^[FN4] The jury ruled in favor of the defendant, as they found no evidence of actual or constructive notice of the condition in stairway. Movant also relies upon the Court of Appeals decision in Simmons v. Metropolitan Life Insurance Co., which sustained a jury verdict finding for the defendant where the plaintiffs presented evidence that icy patches had been noticed weeks prior to the accident, but no testimony was introduced that defendant was notified of these icy conditions. Additionally, no evidence was introduced as to the origin of the patch of ice on which plaintiff allegedly slipped and whether defendant had sufficient time to remedy the dangerous condition.^[FN5]

In the instant case, the deposition testimony shows that defendant acknowledged that the prior tenant had installed a cabinet in the bathroom and the defendant observed it when she entered the apartment during the two months of vacancy before the plaintiff moved in. Defendant's testimony also shows that she failed to reasonably inspect the fixture in relation to the wall. Plaintiff argues that defendant had notice upon entry of the apartment and ample opportunity to fix the loose cabinet before re-renting the apartment.

Here, whether the defendant had notice or opportunity to cure is an issue of fact. For the foregoing reasons, the moving defendant has not demonstrated a prima facie case entitling her to a judgment as a matter of law because triable issues of fact exist. Therefore, defendant's motion for summary judgment is denied.

Accordingly, it is hereby:

ORDERED, that the defendant Angela M. Bartusiavicius's motion for summary judgment is denied to in its entirety; and it is further

ORDERED, that parties appear before this court at DCM Part 3, 130 Stuyvesant Place, 3rd floor, Staten Island, NY 10301 on Wednesday August 17, 2011 at 9:30a.m.

ENTER,

DATED: July 27, 2011_________________________

Joseph J. Maltese

Justice of the Supreme Court