PRICE v. KOWALSKI

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

Andrew W. PRICE, respondent, v. Dorothy KOWALSKI, appellant.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, DANIEL W. JOY and MYRIAM J. ALTMAN, JJ. Conway Farrell Curtin & Kelly, P.C., New York, N.Y. (Thomas P. Gorton of counsel), for appellant. Trager, Cronin & Byczek, L.L.P., Lake Success, N.Y. (Raymond E. Kerno of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated March 27, 1998, which denied her motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff was rendered a quadriplegic when, after diving into the defendant's pool from a diving board, he struck his head on the bottom of the pool.   The defendant moved for summary judgment dismissing the complaint on the ground, inter alia, that she neither created nor had notice of the allegedly dangerous condition.   In opposition to the motion the plaintiff submitted, inter alia, the affidavit of a professional engineer stating, among other things, that the pool was too shallow at crucial diving points, the pool was too shallow to have a diving board at all, and this dangerous condition was readily discoverable by a lay person such as the defendant.   The Supreme Court denied the motion.   We affirm.

 “The owner of a private residential swimming pool has a duty to maintain the pool in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk” (Herrera v. Piano, 125 A.D.2d 548, 548-549, 509 N.Y.S.2d 829).   At issue on the instant appeal, inter alia, is whether the defendant had constructive notice of the allegedly dangerous condition which caused the plaintiff's injuries.  “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendant] to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).   Here, the allegedly dangerous condition was unquestionably present for a sufficient time for the defendant to remedy it.   She had owned the property since 1987 and the incident occurred in 1995.   Further, there is no evidence that the condition was not “visible and apparent” to the defendant.   Therefore, the defendant failed to establish a prima facie case that she did not have constructive notice of the condition (see, Colt v. Great Atl. & Pac. Tea Co., 209 A.D.2d 294, 618 N.Y.S.2d 721).

 Under the circumstances of this case, the defendant's contention that the plaintiff's conduct was reckless as a matter of law is without merit (see, Silverman v. Zebersky, 174 A.D.2d 615, 616, 571 N.Y.S.2d 317).

MEMORANDUM BY THE COURT.

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