Opinion
04-28-2017
Ronald HANSFORD, Plaintiff–Appellant, v. Michael WELLSBY and Wendy Wellsby, Defendants–Respondents.
Spadafora & Verrastro, LLP, Buffalo (Richard E. Updegrove of Counsel), for Plaintiff–Appellant. Kenney Shelton Liptak Nowak LLP, Buffalo (Andrew D. Drilling of Counsel), for Defendants–Respondents.
Spadafora & Verrastro, LLP, Buffalo (Richard E. Updegrove of Counsel), for Plaintiff–Appellant.
Kenney Shelton Liptak Nowak LLP, Buffalo (Andrew D. Drilling of Counsel), for Defendants–Respondents.
PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he fell while stepping down from a porch on property owned by defendants. The porch was approximately 13 inches off the ground, and there were two concrete blocks that were placed next to the porch to act as steps. At his deposition, plaintiff testified that, when he stepped on one of the concrete blocks, it broke and caused him to lose his balance and fall.
Supreme Court properly denied plaintiff's motion seeking summary judgment on the issues of negligence and proximate cause. "A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk" (Boderick v. R.Y. Mgt. Co., Inc., 71 A.D.3d 144, 147, 897 N.Y.S.2d 1 ; see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). To establish his entitlement to summary judgment, plaintiff had to establish as a matter of law that defendants created the defective condition or had actual or constructive notice of it (see Del Carmen Cuque v. Amin, 125 A.D.3d 1490, 1491, 4 N.Y.S.3d 428 ; Sniatecki v. Violet Realty, Inc., 98 A.D.3d 1316, 1318, 951 N.Y.S.2d 628 ; see also Gaffney v. Norampac Indus., Inc., 109 A.D.3d 1210, 1211, 971 N.Y.S.2d 782 ). In addition, plaintiff also had to establish "that the defendant's negligence was a proximate cause of the injuries. To do so, the negligence must be a substantial cause of the events which produced the injury" (Boderick, 71 A.D.3d at 147, 897 N.Y.S.2d 1, citing Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010, reconsideration denied 52 N.Y.2d 829, 437 N.Y.S.2d 1030, 418 N.E.2d 694 ).
In support of the motion, plaintiff established that the stairs were in violation of the building codes, which constitutes some evidence of negligence (see Morreale v. Froelich, 125 A.D.3d 1280, 1281, 3 N.Y.S.3d 479 ; Brigandi v. Piechowicz, 13 A.D.3d 1105, 1106, 787 N.Y.S.2d 790 ).
However, although the broken block constituted a dangerous condition, plaintiff did not establish as a matter of law that defendants created that dangerous condition or had actual or constructive notice of it (see Del Carmen Cuque, 125 A.D.3d at 1491, 4 N.Y.S.3d 428 ). Furthermore, plaintiff failed to establish as a matter of law that the violation of the building codes proximately caused the accident (see generally Morreale, 125 A.D.3d at 1281–1282, 3 N.Y.S.3d 479 ; Brigandi, 13 A.D.3d at 1106, 787 N.Y.S.2d 790 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.