CROSHIER v. NEW HORIZONS RESOURCES INC

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

Shelly CROSHIER, Appellant, v. NEW HORIZONS RESOURCES, INC., Respondent.

2018–14402

Decided: July 15, 2020

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, BETSY BARROS, JJ. Mark A. Campbell, Valhalla, N.Y. (Marie R. Hodukavich of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, New York, N.Y. (Eric J. Koplowitz of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Edward T. McLoughlin, J.), dated November 1, 2018.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action to recover damages for personal injuries that she alleges she sustained when she fell on the driveway of a group home owned and operated by the defendant.  According to the plaintiff, she is a certified occupational therapy assistant and had just left one of her clients who resided in the group home when she slipped and fell on the asphalt driveway.

The defendant moved for summary judgment dismissing the complaint contending, inter alia, that the plaintiff did not know what had caused her to fall, that the defendant did not have notice of the alleged condition that caused the plaintiff to fall, and that the condition alleged by the plaintiff was trivial and thus not actionable.  The Supreme Court granted the motion.  The plaintiff appeals.

A property owner has a duty to maintain its premises in a reasonably safe condition (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868).  In a premises liability case, in order to succeed on a motion for summary judgment dismissing the complaint, a defendant real property owner generally must establish, prima facie, that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Williams v. Island Trees Union Free Sch. Dist., 177 A.D.3d 936, 937, 114 N.Y.S.3d 118;  Kerzhner v. New York City Tr. Auth., 170 A.D.3d 982, 982–983, 96 N.Y.S.3d 298).  A defendant can also establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of her or his accident (see Kerzhner v. New York City Tr. Auth., 170 A.D.3d at 983, 96 N.Y.S.3d 298).

Here, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party (see Matadin v. Bank of Am. Corp., 163 A.D.3d 799, 800, 80 N.Y.S.3d 439;  Giraldo v. Twins Ambulette Serv., Inc., 96 A.D.3d 903, 903, 946 N.Y.S.2d 871), the defendant failed to establish, prima facie, that the plaintiff could not identify the cause of her fall.  The evidence submitted by the defendant, which included a transcript of the plaintiff's deposition testimony, failed to eliminate all triable issues of fact as to whether the numerous cracks that constituted the condition of the driveway had caused the plaintiff to fall (see Kozik v. Sherland & Farrington, Inc., 173 A.D.3d 994, 995, 103 N.Y.S.3d 128).

The defendant also failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition of the driveway (see Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222).  To meet its initial burden to show a lack of constructive notice, the defendant must offer probative evidence demonstrating a proximity in time between when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see id. at 598–599, 869 N.Y.S.2d 222).  The affidavit of the defendant's maintenance worker submitted in support of the defendant's motion referred only to his general inspection practices but did not refer to any specific inspection in the area of the plaintiff's fall relative to the date of the incident.  Another employee of the defendant averred in an affidavit that she had inspected the driveway approximately seven weeks prior to the plaintiff's fall and found all routes were clear of obstructions.  She also averred that the defendant's maintenance department inspected the driveway at least once per month.  This evidence was insufficient to establish, prima facie, lack of constructive notice (see id.).

The defendant also failed to establish its prima facie entitlement to judgment as a matter of law on the basis that the alleged defect was trivial.  The defendant failed to establish, prima facie, that the cracked condition of the driveway was trivial as a matter of law, and thus, nonactionable (see French v. Long Is. Children's Museum, 163 A.D.3d 778, 779, 81 N.Y.S.3d 497).

Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint, without regard to 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).

RIVERA, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur.

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