JONES v. New Horizons Resources, Inc., third-party defendant-respondent. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated December 18, 2020.  The order, insofar as appealed from, granted that branch of the motion of the defendants third-party plaintiffs which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant third-party plaintiff 234–236 Elmendorf Street, LLC.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and that branch of the motion of the defendants third-party plaintiffs which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant third-party plaintiff 234–236 Elmendorf Street, LLC, is denied.

The plaintiff commenced this action against, among others, the defendants third-party plaintiffs, 234–236 Elmendorf Street, LLC, and Andrew Kaplan (hereinafter together the defendants), to recover damages for personal injuries she alleged she sustained when she fell as she was descending a wooden basement staircase located at premises owned by 234–236 Elmendorf Street, LLC. According to the plaintiff, a nail, protruding approximately one inch from one of the steps, “grabbed” her shoelace and the step gave way, causing her to fall.  The defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them.  The plaintiff opposed.  In an order dated December 18, 2020, the Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against 234–236 Elmendorf Street, LLC. 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” (Bennett v. Alleyne, 163 A.D.3d 754, 754–755, 81 N.Y.S.3d 504).  “In a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” (Wittman v. Nespola, 190 A.D.3d 1012, 1013, 136 N.Y.S.3d 885 [alteration and internal quotation marks omitted]).  “A defendant has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” (Vella v. UBM Holdings, Inc., 216 A.D.3d 1051, 1053, 189 N.Y.S.3d 673).  “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Fortune v. Western Beef, Inc., 178 A.D.3d 671, 672, 115 N.Y.S.3d 93 [internal quotation marks omitted];  see Rogers v. Bloomingdale's, Inc., 117 A.D.3d 933, 934, 985 N.Y.S.2d 731).  “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” (Fortune v. Western Beef, Inc., 178 A.D.3d at 672, 115 N.Y.S.3d 93 [internal quotation marks omitted];  see Croshier v. New Horizons Resources, Inc., 185 A.D.3d 780, 781, 127 N.Y.S.3d 537).

Contrary to the Supreme Court's determination, the defendants failed to establish, prima facie, that 234–236 Elmendorf Street, LLC, lacked constructive notice of the protruding nail condition alleged by the plaintiff (see Garcia–Monsalve v. Wellington Leasing, L.P., 123 A.D.3d 1085, 1086, 1 N.Y.S.3d 228).  Although the defendants submitted a transcript of the plaintiff's deposition testimony wherein she averred that she did not notice the protruding nail when she last used the staircase approximately one week prior to her accident, the defendants did not establish that the condition did not exist for a sufficient length of time prior to the alleged accident in order for it to be remedied (see Beharovic v. 18 E. 41st St. Partners, Inc., 123 A.D.3d 953, 955, 1 N.Y.S.3d 158;  Sahni v. Kitridge Realty Co., Inc., 114 A.D.3d 837, 838, 980 N.Y.S.2d 787).  Moreover, the defendants failed to submit sufficient evidence as to when 234–236 Elmendorf Street, LLC, had last cleaned or inspected the staircase at issue (see Garcia–Monsalve v. Wellington Leasing, L.P., 123 A.D.3d at 1086, 1 N.Y.S.3d 228;  Mercedes v. City of New York, 107 A.D.3d 767, 769, 968 N.Y.S.2d 519).

Since the defendants did not sustain their prima facie burden of establishing the entitlement of 234–236 Elmendorf Street, LLC, to judgment as a matter of law, we need not consider the sufficiency of the plaintiff's opposition (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).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against 234–236 Elmendorf Street, LLC.

DILLON, J.P., DUFFY, CHRISTOPHER and LANDICINO, JJ., concur.