Opinion
No. 2023-03141 Index No. 54157/20
08-28-2024
K. B., etc., et al., appellants, v. City of Mount Vernon, respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellants. Law Office of Kimberley A. Carpenter, P.C., New Rochelle, NY, for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellants.
Law Office of Kimberley A. Carpenter, P.C., New Rochelle, NY, for respondent.
FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated March 9, 2023. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The infant plaintiff allegedly was injured when one of two hinged metal panels covering a water meter pit gave way underneath her. The water meter pit was located in a public park owned by the defendant. The plaintiffs commenced this action, inter alia, to recover damages for personal injuries, alleging that the defendant failed to maintain the premises in a safe condition. The defendant moved for summary judgment dismissing the complaint, arguing, among other things, that constructive notice of a defect may not be imputed where the defect is latent. In an order dated March 9, 2023, the Supreme Court granted the defendant's motion, determining, inter alia, that the defendant made a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence. The plaintiffs appeal.
"In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence" (Elizee v Village of Amityville, 172 A.D.3d 1004, 1004). Generally, "'[t]o meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell'" (Phipps v Conifer Realty, LLC, 220 A.D.3d 654, 655, quoting Vinokurova v Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 A.D.3d 751, 751-752). "'Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice'" (id., quoting Vinokurova v Edith & Carl Marks Jewish Community House of Bensonhurst, Inc., 212 A.D.3d at 752). However, "'[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it'" (M.A.M. v Palisades Ctr. Mall, 225 A.D.3d 844, 845, quoting Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837). Thus, "'[w]hen a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed'" (Alexandridis v Van Gogh Contr. Co., 180 A.D.3d 969, 972, quoting Schnell v Fitzgerald, 95 A.D.3d 1295, 1295).
Here, contrary to the plaintiffs' sole contention on appeal, the evidence submitted by the defendant established, prima facie, that the defendant did not have constructive notice of the defect in the hinges supporting the metal panel, which was latent and not discoverable upon a reasonable inspection prior to the infant plaintiff's fall (see Nelson v AMF Bowling Ctrs., Inc., 206 A.D.3d 929, 930; Marinaro v Reynolds, 152 A.D.3d 659, 660; Carrillo v Circle Manor Apts., 131 A.D.3d 662, 664; Lali v Ching Po Ng, 33 A.D.3d 668, 668). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
CONNOLLY, J.P., MILLER, WARHIT and VOUTSINAS, JJ., concur.