DENYSE v. GELERNTER (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated October 8, 2024.  The order granted the defendants' motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed, with costs.

In April 2018, the plaintiff allegedly was injured while performing tree and brush removal services on premises owned by the defendants.  At the time of the accident, the plaintiff was leaning against the railing of the defendants' second-floor exterior deck when the railing gave way, causing him to fall to the ground.  The plaintiff subsequently commenced this action against the defendants to recover damages for personal injuries.  The defendants moved for summary judgment dismissing the amended complaint, arguing, inter alia, that they lacked constructive notice of the alleged defective condition of the railing and that any such condition was a latent defect.  In an order dated October 8, 2024, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

“In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence” (Elizee v. Village of Amityville, 172 A.D.3d 1004, 1004, 101 N.Y.S.3d 120;  see Hayden v. 334 Dune Rd., LLC, 196 A.D.3d 634, 635, 152 N.Y.S.3d 450).  “A defendant has constructive notice of a dangerous or defective condition on property 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” (Vargas v. Lamberti, 186 A.D.3d 1572, 1573, 131 N.Y.S.3d 66;  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).  “To meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred” (Lyman v. Cablevision of Ossining Ltd. Partnership, 215 A.D.3d 945, 948, 188 N.Y.S.3d 576;  see Guzman v. 787 Holdings, LLC, 228 A.D.3d 628, 629, 212 N.Y.S.3d 689).  However, “[w]hen a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” (Schnell v. Fitzgerald, 95 A.D.3d 1295, 1295, 945 N.Y.S.2d 390;  see Alexandridis v. Van Gogh Contr. Co., 180 A.D.3d 969, 972, 120 N.Y.S.3d 347).

Here, the defendants established, prima facie, that they did not have constructive notice of the defect in the railing, as this defect was latent and was not discoverable upon a reasonable inspection prior to the plaintiff's fall.  In support of their motion, the defendants submitted, among other things, an affidavit from an engineer who opined that the railing gave way because it was constructed using finish nails rather than common nails or metal brackets and screws, and that this defect was latent and could not have been discovered by the defendants upon a reasonable inspection (see K.B. v. City of Mount Vernon, 230 A.D.3d 727, 728, 215 N.Y.S.3d 535;  Hoffman v. Brown, 109 A.D.3d 791, 792, 971 N.Y.S.2d 130;  McMahon v. Gold, 78 A.D.3d 908, 910, 910 N.Y.S.2d 561).

In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  A report of an engineer submitted by the plaintiff was not in admissible form, and the plaintiff offered no excuse for failing to tender the report in admissible form (see CPLR 2106;  Sanchez–Trujillo v. Beach 119, LLC, 225 A.D.3d 726, 726, 205 N.Y.S.3d 221).  In any event, even if the report were in admissible form, the report would have been insufficient to raise a triable issue of fact as to whether the defendants could have discovered the alleged defect upon a reasonable inspection.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the amended complaint.

GENOVESI, J.P., WAN, VENTURA and QUIRK, JJ., concur.