ROUSSEAU v. GUGLIUZZA (2001)

Supreme Court properly denied the motion of defendant James Gugliuzza seeking summary judgment dismissing the complaint against him and sanctions.   The court also properly denied the motion of defendant David Gugliuzza, James' brother, seeking summary judgment dismissing the complaint against him.   Plaintiff commenced this action seeking damages for injuries that she sustained when she slipped and fell on an unshoveled walkway at the side of her apartment building.   She rented her apartment from James, the out-of-possession landlord of the two-story, two-apartment home.   David was the other tenant.

 James contends that, as an out-of-possession landlord, he was not liable for injuries that occurred on his premises.   We agree with plaintiff, however, that there is an issue of fact whether James by his course of conduct assumed responsibility to maintain any portion of the premises (see, Del Giacco v. Noteworthy Co., 175 A.D.2d 516, 518, 572 N.Y.S.2d 784;  see also, Regensdorfer v. Central Buffalo Project Corp., 247 A.D.2d 931, 932, 668 N.Y.S.2d 291).   According to plaintiff, James performed repairs, maintained the lawn and shrubbery, replaced the garage roof, and painted the house, and James testified at his deposition that he may have assisted David in clearing snow from the property.   With respect to David, we conclude that his deposition testimony that he shoveled the driveway and walkways on the property and the deposition testimony of James that snow removal was the responsibility of the tenants raises a triable issue of fact with respect to David's duty, if any, to clear the walkway of snow (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;  Brown v. Aurora Sys., 283 A.D.2d 956, 723 N.Y.S.2d 793).

 Defendants each contend that, even assuming that they had a duty to clear the walkway of snow, they lacked actual or constructive notice of the allegedly dangerous condition and that, because a reasonable period of time had not elapsed following the storm, they were not responsible for the failure to remove the snow.   We conclude that the evidence submitted regarding the storm on the day of plaintiff's fall raises issues of fact whether defendants had actual or constructive notice of the allegedly dangerous condition or whether a reasonable period of time had elapsed after the storm (see, Gilmartin v. Tempestoso, 273 A.D.2d 875, 709 N.Y.S.2d 298;  Laster v. Port Auth., 251 A.D.2d 204, 205, 676 N.Y.S.2d 539, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 905, 703 N.E.2d 763;  Cerra v. Perk Dev., 197 A.D.2d 851, 602 N.Y.S.2d 277).

Order unanimously affirmed without costs.

MEMORANDUM: