Opinion
2016/06150
03-06-2017
La Porsha SHAW, Plaintiff, v. Barbara FRIEDLY and David Schuler, Defendants.
Shannon Howley, Esq., Brown Hutchinson LLP, for Plaintiff Tiffany L. D'Angelo, Esq., Law Offices of John Trop, for Defendant Friedly David Schuler, Defendant, PRO SE
Shannon Howley, Esq., Brown Hutchinson LLP, for Plaintiff
Tiffany L. D'Angelo, Esq., Law Offices of John Trop, for Defendant Friedly
David Schuler, Defendant, PRO SE
Renee Forgensi Minarik, J.
Defendant Barbara Friedly has moved for summary judgement dismissing the complaint on the grounds that she was an out-of-possession landlord with no notice of any alleged defect or dangerous condition.
Ms. Friedly owned the property known as 3166 Culver Road, Rochester, New York. David Schuler, Ms. Friedly's brother, resided at the property as a tenant. Mr. Schuler has appeared pro se. Plaintiff, a mail carrier employed by the United States Postal Service, was delivering mail to the property on October 31, 2013 at approximately 9:00 a.m. Plaintiff alleges she climbed the two steps onto the front porch, delivered the mail, began to walk off the porch to leave, and fell. Plaintiff testified at her deposition that she did not see what caused her to fall. After she fell, she observed a brick from the bottom porch step laying on the ground.
Ms. Friedly resides in Ohio and has never lived in Rochester, New York. She stated in her deposition that the property was once owned by her brother, Mr. Schuler. Mr. Schuler transferred title to Ms. Friedly; she took over ownership to help her brother out financially. Mr. Schuler made monthly payments to her. Ms. Friedly could not recall specific repairs that were made and who paid for them, except that she may have paid for a new roof. She stated she never conducted any property inspections as the owner, but that she occasionally visited her brother and never used the front porch, always entering the home through the back door, where she would park. She was not aware of a problem with the front porch until she was served with the complaint in this action. Ms. Friedly sold the property after the accident.
Mr. Schuler also provided testimony at a deposition. He stated he lived in the property from 1984 until Ms. Friedly sold it. He explained Ms. Friedly purchased the property while Mr. Schuler was going through a divorce and he paid her the monthly mortgage amount plus he covered all maintenance and expenses. He admitted that a brick did come loose on the porch step, but he never noticed a problem with the steps prior to the accident.
Ms. Friedly now maintains that she is an out-of-possession landlord who had never, by her conduct, or in writing, assumed responsibility for the maintenance and repair of the premises where Plaintiff fell.
An out-of-possession landlord who 1) is not contractually obligated to maintain the property or 2) relinquishes control of the property, is not liable for persons injured by an unsafe condition. Regensdorfer v. Central Buffalo Project Corp. , 247 AD2d 931 (4th Dept 1998). Ms. Friedly has proven that she was not a party to a contract obligating her to remedy unsafe conditions at the premises. In fact, no written lease existed between Ms. Friedly and her brother. Further, she relinquished control over the property to her brother. Ms. Friedly came to Rochester infrequently, and when she did so, for social purposes only. She never possessed a key to the residence, or conducted property inspections, made or arranged repairs or stored personal possessions on the property. By her own testimony and Mr. Schuler's, this was an oral agreement wherein Mr. Schuler took responsibility for maintenance and repairs while living in the residence. Ms. Friedly has met her burden on summary judgement and I find that Plaintiff has failed to identify an issue of fact upon which I can deny Ms. Friedly her requested relief. cf. Rousseau v. Gugliuzza , 285 AD2d 993 (4th Dept 2001).
Alternatively, Ms. Friedly lacked actual or constructive notice of the loose brick on the porch steps. She stated that, on the few occasions she was on the premises, she used the back door and could not even recall what the front door and porch looked like. Further, in keeping with the manner in which repairs and maintenance were addressed, Mr. Schuler, when told about the loose brick after the accident, fixed the step without calling to inform Ms. Friedly.
Summary judgement is granted to Ms. Friedly and the complaint is dismissed as to her only. The caption shall be amended to reflect the only remaining defendant as Mr. Schuler. All other requests for relief are denied.
Ms. Friedly is to provide an order to the Court, a copy of this decision is to be attached, with copies to be provided to Plaintiff and Mr. Schuler. Any objections to the order are to be made in writing to the Court, with copies to all parties, within eight (8) business days of receipt of the proposed order.