BENNETT v. ALLEYNE (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Theresa M. Ciccotto, J.), dated July 18, 2017.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On March 7, 2010, at approximately 8:00 p.m., the plaintiff allegedly sustained personal injuries when she fell down an interior stairway in a two-family house that was owned by Sheila Robinson and in which the plaintiff had rented the upstairs apartment for more than 20 years.  The plaintiff commenced this action against Robinson to recover damages for personal injuries, alleging that Robinson was negligent in, among other things, failing to provide adequate lighting in the subject stairway.  During the pendency of the action, Robinson died, and Eric Alleyne, as executor of her estate, was substituted as the defendant.  The defendant moved for summary judgment dismissing the complaint.  The Supreme Court denied the motion, and the defendant 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;  Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 453, 15 N.Y.S.3d 147).  “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” (Kyte v. Mid–Hudson Wendico, 131 A.D.3d at 453, 15 N.Y.S.3d 147;  see Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 989, 1 N.Y.S.3d 155).  A defendant has constructive notice of a hazardous 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 (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)

Here, contrary to the defendant's contention, he failed to demonstrate, prima facie, inter alia, that Robinson lacked constructive notice of the alleged defective conditions, including a loose top step, a loose screw on the landing of the subject staircase, and inadequate lighting in the staircase, or that these conditions were not a proximate cause of the plaintiff's fall (see Eksarko v. Associated Supermarket, 155 A.D.3d 826, 827, 63 N.Y.S.3d 723;  Pajovic v. 94–06 34th Rd. Realty Co., LLC, 152 A.D.3d 781, 781, 59 N.Y.S.3d 138;  Gestetner v. Teitelbaum, 52 A.D.3d 778, 860 N.Y.S.2d 208;  Swerdlow v. WSK Props. Corp., 5 A.D.3d 587, 772 N.Y.S.2d 864).  Since the defendant failed to meet his prima facie burden, it is unnecessary to consider the adequacy 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).

Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion for summary judgment dismissing the complaint.

CHAMBERS, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.