Opinion
2017–08329 Index No. 6604/15
02-06-2019
Doris STEPKOWSKI, Appellant, v. HOLY TRINITY DIOCESAN HIGH SCHOOL, et al., Respondents.
Bragoli & Associates, P.C., Melville, N.Y. (Susan R. Nudelman and Joseph Sorce of counsel), for appellant. Mulholland Minion Davey McNiff & Beyrer, Williston Park, N.Y. (Lynn A. Waylonis of counsel), for respondents.
Bragoli & Associates, P.C., Melville, N.Y. (Susan R. Nudelman and Joseph Sorce of counsel), for appellant.
Mulholland Minion Davey McNiff & Beyrer, Williston Park, N.Y. (Lynn A. Waylonis of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the order is reversed, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint is denied.
The plaintiff alleges that on the evening of December 16, 2014, while walking on a roadway located on premises owned and/or controlled by the defendants, she tripped and fell due to a cracked, crumbled, and uneven section of asphalt surrounding a sewer grate. The plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging, inter alia, that the defendants either caused the alleged dangerous condition to exist, or had actual or constructive notice of it. Following the completion of discovery, the defendants moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court granted that branch of the defendants' motion, and the plaintiff appeals.
A property owner, or a party in possession or control of real property, has 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, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). In a premises liability case, a defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the condition that allegedly caused the accident nor had actual or constructive notice of its existence (see Davidoff v. First Dev. Corp., 148 A.D.3d 773, 774, 48 N.Y.S.3d 755 ; Shehata v. City of New York, 128 A.D.3d 944, 946, 10 N.Y.S.3d 265 ). "To provide 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’ " ( Shehata v. City of New York, 128 A.D.3d at 946, 10 N.Y.S.3d 265, quoting Arcabascio v. We're Assoc., Inc., 125 A.D.3d 904, 904, 4 N.Y.S.3d 125 ).
Here, the evidence submitted in support of the defendants' motion demonstrated, prima facie, that they did not have actual notice of the alleged dangerous condition, but failed to eliminate triable issues of fact as to whether they created the condition or had constructive notice of it (see Shehata v. City of New York, 128 A.D.3d at 946–947, 10 N.Y.S.3d 265 ; Blagrove v. Metropolitan Transp. Auth., 89 A.D.3d 880, 880, 933 N.Y.S.2d 84 ). The defendants' failure to establish their prima facie entitlement to judgment as a matter of law required the denial of that branch of their motion which was for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Blagrove v. Metropolitan Transp. Auth., 89 A.D.3d at 880, 933 N.Y.S.2d 84 ).
RIVERA, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.