MANSON FREMPONG v. FORBES (2024)

Order, Supreme Court, Bronx County (Andrew Cohen, J.), entered on or about October 17, 2022, which, in an action for personal injury, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants property owners submitted sufficient evidence to satisfy their prima facie burden demonstrating a lack of constructive notice (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986];  Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011]).  The evidence established that neither defendant Christopher Forbes, during his bimonthly or quarterly inspections of the home, nor plaintiff, during her three years traversing the basement staircase two or three times per week to access the laundry, including earlier the day of her incident, observed damage or wear-and-tear to the steps, experienced a problem while using the stairwell, or were advised of any issues with the staircase.  Moreover, as there was no visible or apparent damage to the step, defendants could not have discovered any latent condition through reasonable inspection (see Lopez v. Dagan, 98 A.D.3d 436, 438–439, 949 N.Y.S.2d 671 [1st Dept. 2012], lv denied 21 N.Y.3d 855, 2013 WL 1876504 [2013];  see also Barrerra v. New York City Tr. Auth., 61 A.D.3d 425, 426, 877 N.Y.S.2d 32 [1st Dept. 2009]).

Plaintiff failed to raise a question of fact in response to defendants’ prima facie showing that they lacked constructive notice of the alleged defective condition.  Plaintiff proffered no evidence that constructive notice was possible given the latency of the step's defect and did not argue that a reasonable inspection would have revealed same (see Bean v. Ruppert Towers Hous. Co., 274 A.D.2d 305, 308, 710 N.Y.S.2d 575 [1st Dept. 2000]).  Plaintiff's argument that defendants had notice, based on her vague testimony that she told a handyman that the staircase sometimes shook when she used it, is insufficient to defeat defendants’ motion.