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Supreme Court, Appellate Division, Fourth Department, New York.

Imad ABDELLATIF, Plaintiff-Appellant, v. Colline KHOUKAZ, Defendant-Respondent, et al., Defendant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, PINE, AND HAYES, JJ. Stamm, Reynolds & Stamm, Williamsville (Brian G. Stamm of Counsel), for Plaintiff-Appellant. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Thomas P. Cunningham of Counsel), for Defendant-Respondent.

Plaintiff commenced this action alleging, inter alia, that the negligence of Colline Khoukaz (defendant) was a proximate cause of the injuries he sustained when he slipped and fell on ice on the driveway outside the building in which he rented an apartment.   Specifically, plaintiff alleged that defendant was negligent in failing to replace a missing downspout near the driveway, which allowed water to accumulate and freeze.   We conclude that Supreme Court erred in granting the motion of defendant seeking summary judgment dismissing the amended complaint against her (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).  “Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises․ The existence of one or more of these elements is sufficient to give rise to a duty of care” (Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105, lv. dismissed in part and denied in part 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671).   Here, defendant failed to establish as a matter of law that she did not exercise control over the downspout and relevant portion of the premises.   Indeed, the deposition testimony of defendant establishes that, although she transferred ownership of the property to a relative who resides in Syria, defendant collected the rent, was the only mortgagor and made the mortgage payments, made certain repairs on the property herself and paid for other repairs out of her own pocket without reimbursement from the record owner, and in fact attempted to sell the property.   Thus, defendant failed to meet her initial burden of establishing as a matter of law that she did not “control[ ] the premises at the time of plaintiff's injury” (Arce v. 1681 Realty Holding Corp., 276 A.D.2d 328, 328, 716 N.Y.S.2d 287;  see Ritto v. Goldberg, 27 N.Y.2d 887, 889, 317 N.Y.S.2d 361, 265 N.E.2d 772;  see also Brown v. O'Connor, 193 A.D.2d 1088, 598 N.Y.S.2d 629).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the amended complaint against defendant Colline Khoukaz is reinstated.