Opinion
906 CA 18–00558
09-28-2018
Steven MILLER, Plaintiff–Appellant, v. John KENDALL, Jr., and Daniel Caverly, Defendants–Respondents.
FITZSIMMONS, NUNN & PLUKAS, LLP, ROCHESTER (JASON E. ABBOTT OF COUNSEL), FOR PLAINTIFF–APPELLANT. LAW OFFICE OF JOHN TROP, ROCHESTER (TIFFANY L. D'ANGELO OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
FITZSIMMONS, NUNN & PLUKAS, LLP, ROCHESTER (JASON E. ABBOTT OF COUNSEL), FOR PLAINTIFF–APPELLANT.
LAW OFFICE OF JOHN TROP, ROCHESTER (TIFFANY L. D'ANGELO OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that he allegedly sustained when he fell on a "slippery, wet and moss covered step" located on premises owned by defendants. We reject plaintiff's contention that Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint. It is well established that "[a] landowner is liable for a dangerous or defective condition on [its] property when the landowner created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it" ( Keene v. Marketplace, 114 A.D.3d 1313, 1314, 980 N.Y.S.2d 699 [4th Dept. 2014] [internal quotation marks omitted]; see Pommerenck v. Nason, 79 A.D.3d 1716, 1716, 914 N.Y.S.2d 826 [4th Dept. 2010] ). We note that, "by briefing the issue of constructive notice only, [plaintiff has] abandoned any claims that defendants had actual notice of or created the dangerous condition" ( Waters v. Ciminelli Dev. Co., Inc., 147 A.D.3d 1396, 1397, 46 N.Y.S.3d 756 [4th Dept. 2017] ). Furthermore, "[b]y submitting evidence that demonstrated that the defect was not visible and apparent," including a photograph of the steps taken 45 minutes after the accident and plaintiff's deposition testimony, "defendant[s] established that [they] did not have constructive notice of the defect" ( Quinn v. Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 A.D.3d 857, 858, 789 N.Y.S.2d 782 [4th Dept. 2005] ; see Anderson v. Justice, 96 A.D.3d 1446, 1447, 946 N.Y.S.2d 739 [4th Dept. 2012] ). Plaintiff failed to raise an issue of fact in opposition to the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).