Opinion
2015-07-22
Vera CHUDINOVA, appellant, v. Arkady KLEYNER, et al., respondents.
Frekhtman & Associates, Brooklyn, N.Y. (Arkady Frekhtman and Stephen J. Smith of counsel), for appellant. Purcell & Ingrao, P.C., Mineola, N.Y. (Terrance J. Ingrao and Corey Pugliese of counsel), for respondents.
Frekhtman & Associates, Brooklyn, N.Y. (Arkady Frekhtman and Stephen J. Smith of counsel), for appellant. Purcell & Ingrao, P.C., Mineola, N.Y. (Terrance J. Ingrao and Corey Pugliese of counsel), for respondents.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated November 20, 2013, which granted the defendants' motion for summary judgment dismissing the complaint and denied her cross motion to preclude the defendants from offering certain expert affidavits and photographs at trial based upon their alleged failure to comply with discovery demands.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when she slipped and fell on the step of an outdoor staircase while exiting the rear of the defendants' residence. The plaintiff thereafter commenced this action against the defendants to recover damages for personal injuries.
Property owners have a duty to maintain the property in a reasonably safe condition ( see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; Martino v. Patmar Props., Inc., 123 A.D.3d 890, 999 N.Y.S.2d 449; Friedman v. 1753 Realty Co., 117 A.D.3d 781, 986 N.Y.S.2d 175). In a premises liability case, a defendant property owner who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence ( see Sperling v. Wyckoff Hts. Hosp., 129 A.D.3d 826, 827, 12 N.Y.S.3d 131; Martino v. Patmar Props., Inc., 123 A.D.3d at 890, 999 N.Y.S.2d 449; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689; Campbell v. New York City Tr. Auth., 109 A.D.3d 455, 456, 970 N.Y.S.2d 284; Bravo v. 564 Seneca Ave. Corp., 83 A.D.3d 633, 634, 922 N.Y.S.2d 88; Bloomfield v. Jericho Union Free School Dist., 80 A.D.3d 637, 638, 915 N.Y.S.2d 294; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 598, 892 N.Y.S.2d 181). To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774; Cassidy v. City of New York, 121 A.D.3d 735, 994 N.Y.S.2d 635; Rodriguez v. Shoprite Supermarkets, Inc., 119 A.D.3d 923, 989 N.Y.S.2d 855).
The defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting a transcript of the deposition testimony of both the plaintiff and the defendant Arkady Kleyner, which demonstrated that the defendants neither created the defect which allegedly caused the plaintiff to fall, nor had actual or constructive notice of its existence prior to the subject accident ( see D'Ippolito v. Shop–Rite Supermarkets, Inc., 115 A.D.3d 703, 981 N.Y.S.2d 587; Ingram v. Long Is. Coll. Hosp., 101 A.D.3d 814, 956 N.Y.S.2d 107; Mantzoutsos v. 150 St. Produce Corp., 76 A.D.3d 549, 907 N.Y.S.2d 34). In opposition, the plaintiff failed to raise a triable issue of fact.
Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in denying her cross motion to preclude the defendants from offering certain expert affidavits and photographs at trial, made on the ground that the defendants did not disclose this evidence prior to the filing of the note of issue ( see generally Begley v. City of New York, 111 A.D.3d 5, 972 N.Y.S.2d 48; Rivers v. Birnbaum, 102 A.D.3d 26, 31, 953 N.Y.S.2d 232; see also Conte v. Frelen Assoc., LLC, 51 A.D.3d 620, 858 N.Y.S.2d 258).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion to preclude the defendants from offering certain expert affidavits and photographs at trial based upon their alleged failure to comply with discovery demands.