From Casetext: Smarter Legal Research

Whyte v. Whyte

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 31, 1999
259 A.D.2d 1009 (N.Y. App. Div. 1999)

Opinion

March 31, 1999

Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.


Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint. To impose liability on a landowner, a plaintiff must establish the existence of a dangerous or defective condition and that the owner either created the condition or had actual or constructive notice of it ( see, Lowrey v. Cumberland Farms, 162 A.D.2d 777, 778). Here, questions of fact exist whether the excessive vegetation growing out of the crack in the step on defendant's property constituted a dangerous or defective condition and whether defendant had actual or constructive notice of the condition. Summary judgment was therefore precluded ( see generally, Hourigan v. McGarry, 106 A.D.2d 845, appeal dismissed 65 N.Y.2d 637).

Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.


Summaries of

Whyte v. Whyte

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 31, 1999
259 A.D.2d 1009 (N.Y. App. Div. 1999)
Case details for

Whyte v. Whyte

Case Details

Full title:GLADYS WHYTE, Appellant, v. SHEILA M. WHYTE, Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 31, 1999

Citations

259 A.D.2d 1009 (N.Y. App. Div. 1999)
689 N.Y.S.2d 894

Citing Cases

Thorn v. Wilmorite, Inc.

Supreme Court properly denied the motion of third-party defendant, K-Mart Corporation (K-Mart), for summary…