JAKLITSCH v. KELLY

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

Jacqueline JAKLITSCH, Respondent, v. Kenneth KELLY, et al., Appellants.

2019–00159

Decided: October 09, 2019

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for appellants. Rubenstein & Rynecki, Brooklyn, N.Y. (Harper A. Smith of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered December 10, 2018. The order denied the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when she fell in the defendants' backyard after her foot became stuck in a gap between the grass and the top step of a staircase. She fell forward, and then rolled down a hill. The plaintiff commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants' motion, and the defendants appeal.

A landowner has a duty to maintain his or her premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Tavarez v. Pistilli Assoc. III, LLC, 161 A.D.3d 1129, 1130, 77 N.Y.S.3d 450). “ ‘In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence’ ” (Haxhia v. Varanelli, 170 A.D.3d 679, 681, 95 N.Y.S.3d 351, quoting Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 560, 792 N.Y.S.2d 123). “[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury” (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489, quoting Guerrieri v. Summa, 193 A.D.2d 647, 647, 598 N.Y.S.2d 4; see Gorokhovskiy v. NYU Hosps. Ctr., 150 A.D.3d 966, 54 N.Y.S.3d 646).

Here, the defendants failed to eliminate triable issues of fact as to whether they had actual or constructive notice of a dangerous or defective condition with respect to the staircase (see Gorokhovskiy v. NYU Hosps. Ctr., 150 A.D.3d 966, 54 N.Y.S.3d 646; Sarbak v. Sementilli, 51 A.D.3d 1001, 858 N.Y.S.2d 763). They failed to establish, prima facie, that their property was compliant with applicable codes and industry standards requiring handrails on staircases and requiring ramps or other safety measures where height differentials exist on walkways. Moreover, the unsworn report of their expert was not in admissible form (see CPLR 2106; Yuan Gao v. City of New York, 145 A.D.3d 939, 940, 43 N.Y.S.3d 493; Mazzola v. City of New York, 32 A.D.3d 906, 907, 821 N.Y.S.2d 247; Ritts v. Teslenko, 276 A.D.2d 768, 769, 715 N.Y.S.2d 418), and the affirmed copy of the report submitted with their reply papers must be rejected because it sought to remedy basic deficiencies in their original motion papers rather than respond to arguments contained in the plaintiff's opposition (see Damas v. Valdes, 84 A.D.3d 87, 96, 921 N.Y.S.2d 114).

Further, the defendants failed to establish, prima facie, that the plaintiff was unable to identify the cause of her fall (see Kelly v. Mall at Smith Haven, LLC, 148 A.D.3d 792, 794, 48 N.Y.S.3d 726; Pol v. Gjonbalaj, 125 A.D.3d 955, 956, 5 N.Y.S.3d 186). In support of their motion, the defendants submitted a transcript of the plaintiff's deposition, at which she testified that she fell because her foot became stuck in the gap between the grass and the top step of the staircase.

Therefore, we need not consider the sufficiency 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 denying the defendants' motion for summary judgment dismissing the complaint.

CHAMBERS, J.P., MALTESE, DUFFY and CHRISTOPHER, JJ., concur.

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