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DeMATTEIS v. SEARS

11 A.D.3d 207 (2004)

782 N.Y.S.2d 261

ROSE DeMATTEIS, Respondent, v. SEARS, ROEBUCK AND CO., Respondent-Appellant, FRED M. SCHILDWACHTER & SONS, INC., Appellant-Respondent, and LEMAE REALTY CORP., Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 5, 2004.

In this action to recover damages for personal injuries allegedly sustained by plaintiff in consequence of having tripped on a raised oil filler cap located on premises leased by defendant Sears from defendant LeMae Realty, neither moving defendant has met its burden of demonstrating, as a matter of law, that it did not create the alleged hazard or have actual or constructive notice of it (see Giuffrida v Metro N. Commuter R.R. Co., 279 A.D.2d 403...

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