Opinion
843 CA 21-01269
02-03-2023
Christopher COLLVER, Plaintiff-Respondent, v. FORNINO REALTY, LLC, and Michael Fornino, Defendants-Appellants.
KNYCH & WHRITENOUR, LLC, EAST SYRACUSE (MATTHEW E. WHRITENOUR OF COUNSEL), FOR DEFENDANTS-APPELLANTS. THE CHIECO LAW GROUP, UTICA (MARK O. CHIECO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
KNYCH & WHRITENOUR, LLC, EAST SYRACUSE (MATTHEW E. WHRITENOUR OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
THE CHIECO LAW GROUP, UTICA (MARK O. CHIECO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety, and the complaint is dismissed.
Memorandum: Plaintiff commenced this personal injury action seeking damages for injuries he allegedly sustained when the staircase he was descending collapsed under him as he was working on a construction project on property owned by defendant Fornino Realty, LLC. The accident occurred shortly after another worker on the property removed a wooden block that had been screwed into the floor at the base of the staircase to secure it. At the time of the accident, screws that should have been in place to secure the top of the staircase were absent. Defendants appeal from an order insofar as it denied that part of their motion for summary judgment dismissing the complaint with respect to the first and second causes of action, which allege common-law negligence and a violation of Labor Law § 200. We now reverse the order insofar as appealed from.
Generally, landowners "have a duty to maintain their properties in reasonably safe condition" ( Cox v. McCormick Farms, Inc. , 144 A.D.3d 1533, 1533-1534, 40 N.Y.S.3d 837 [4th Dept. 2016] ; see Gronski v. County of Monroe , 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011], rearg denied 19 N.Y.3d 856, 946 N.Y.S.2d 562, 969 N.E.2d 780 [2012] ), and " Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" ( Forman v. Carrier Corp. , 172 A.D.3d 1920, 1920, 97 N.Y.S.3d 920 [4th Dept. 2019] [internal quotation marks omitted]). Thus, with respect to both common-law negligence and Labor Law § 200 claims based on a dangerous premises condition, "a defendant landowner has the initial burden of establishing its entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of [the] dangerous condition" ( Menear v. Kwik Fill , 174 A.D.3d 1354, 1357, 105 N.Y.S.3d 766 [4th Dept. 2019] ; see Forman , 172 A.D.3d at 1920, 97 N.Y.S.3d 920 ; Mayer v. Conrad , 122 A.D.3d 1366, 1367, 997 N.Y.S.2d 869 [4th Dept. 2014] ).
Here, defendants met their initial burden on their motion of establishing that they did not have actual notice of any dangerous condition of the staircase by submitting evidence that defendant Michael Fornino (Fornino) was unaware prior to the accident of any missing screws, he had used the staircase on the night before without incident, he would have noticed a bounce in the staircase if the staircase had not been secure, and neither he nor anyone else noticed such a bounce. In opposition, plaintiff failed to raise a triable issue of fact with respect to actual notice (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] ). Similarly, defendants met their initial burden on their motion of establishing that they did not create the dangerous condition that caused plaintiff's accident (cf. generally Brown v. Simone Dev. Co., L.L.C. , 83 A.D.3d 544, 544-545, 922 N.Y.S.2d 21 [1st Dept. 2011] ; Henderson v. L & K Collision Corp. , 146 A.D.2d 569, 571, 536 N.Y.S.2d 183 [2d Dept. 1989] ) and, in opposition, plaintiff failed to raise a triable issue of fact whether defendants created that condition. We further conclude that defendants met their initial burden with respect to the issue of constructive notice of the dangerous condition. For a property owner to be on 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 property owner or the property owner's] employees to discover and remedy it" ( Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Here, defendants had no employees and defendants have established that the dangerous condition did not exist "for a sufficient length of time before the accident to permit [Fornino] ... to discover and remedy" the condition ( Solecki v. Oakwood Cemetery Assn. , 158 A.D.3d 1088, 1089-1090, 70 N.Y.S.3d 673 [4th Dept. 2018] [internal quotation marks omitted]; see St. John v. Westwood-Squibb Pharms., Inc. , 138 A.D.3d 1501, 1503, 31 N.Y.S.3d 720 [4th Dept. 2016] ). In opposition, plaintiff failed to raise a triable issue of fact as to constructive notice.