| Ennis-Short v Ostapeck |
| 2009 NY Slip Op 09344 [68 AD3d 1399] |
| December 17, 2009 |
| Appellate Division, Third Department |
| Betsy G. Ennis-Short et al., Respondents, v Aida Ostapeck,Individually and Doing Business as Aida's Place, Appellant. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Leah W. Casey ofcounsel), for respondents.
Kane, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered January 2, 2009in Otsego County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff Betsy G. Ennis-Short was injured when she fell down a "winder" staircase in abuilding owned by defendant. After plaintiffs commenced this negligence action and filed a noteof issue, defendant moved for summary judgment dismissing the complaint. Supreme Courtdenied the motion, prompting defendant's appeal.
Because triable issues of fact exist, Supreme Court properly denied defendant's motion forsummary judgment. To prevail on her motion, defendant was required to show that shemaintained the premises in a reasonably safe condition and neither created nor had actual orconstructive notice of any allegedly dangerous condition (see Managault v Rensselaer Polytechnic Inst., 62 AD3d 1196,1197 [2009]; Zibro v Saratoga Natl.Golf Club, Inc., 55 AD3d 998, 999 [2008]). Defendant met her initial burden byaverring that she owned the property since 1984, had not made any alterations to the staircase, noone had ever fallen on those stairs or complained about them, the building had been inspectednumerous times by various municipal entities without any violations being noted, and sheinspected and cleaned the staircase several [*2]times each week,including the day before plaintiff's accident. The burden then shifted to plaintiffs to raise issuesof fact requiring a trial.
While there was no proof that defendant created a dangerous condition or had actual notice,constructive notice may be established by showing that the condition was apparent, visible andexisted for a sufficient time prior to the accident so as to allow defendant to discover and remedythe problem (see Managault v Rensselaer Polytechnic Inst., 62 AD3d at 1197; Boykov Limowski, 223 AD2d 962, 964 [1996]). Ennis-Short testified that her foot slipped out fromunder her when she was standing on one of the wedge-shaped treads of the winder staircase. Shereached for the handrail, but was unable to grasp it. Pictures and measurements of the staircaseshow that there was no handrail on the outside wall, the handrail on the inside wall was notcontinuous, the break in the handrail occurred at the wedge-shaped portion of the staircase, andthe beginning of the second railing was too low to be usable by someone walking down the stairs(compare Mokszki v Pratt, 13AD3d 709, 710 [2004]). Considering that the stairs had existed in this configuration for the20 years that defendant owned the building, questions of fact exist as to whether defendant wason notice that the staircase constituted a dangerous condition and whether the handrail placementunreasonably heightened the risk of traversing the winder staircase (compare Zibro vSaratoga Natl. Golf Club, Inc., 55 AD3d at 1000). Thus, summary judgment would havebeen improper.
Supreme Court could have decided the motion based upon the factual proof and allegations,without expert opinion. Nevertheless, because defendant did not demonstrate any prejudice dueto plaintiffs' failure to timely respond to defendant's demand for disclosure of expertwitnesses,[FN*]and plaintiffs had informed defendant that an expert would be inspecting thepremises—which inspection occurred while a representative of defendant's insurancecarrier was present—the court did not abuse its discretion in considering the affidavits ofplaintiffs' two experts (see Bockelmann v New Paltz Golf Course, 284 AD2d 783, 783[2001], lv denied 97 NY2d 602 [2001]; cf. Mead v Dr. Rajadhyax' Dental Group, 34 AD3d 1139, 1140[2006]; Washington v Albany Hous. Auth., 297 AD2d 426, 428 [2002]).
Supreme Court did not abuse its discretion in considering the surreply affidavit submitted byplaintiffs' counsel. That affidavit provided further information to support plaintiffs' position afterthe court requested that the parties submit affidavits from fact witnesses on a certain issue(cf. Russell v Trask Co., 125 AD2d 136, 138 [1987]; compare Fiore v OakwoodPlaza Shopping Ctr., 164 AD2d 737, 739 [1991], affd 78 NY2d 572 [1991], certdenied 506 US 823 [1992]). As defendant did not seek to submit a response nor raise anobjection to counsel's affidavit in the trial court, we cannot say that the court erred in consideringthat document (see Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 623-624 [2003];compare Matter of Kushaqua Estates v Bonded Concrete, 215 AD2d 993, 994 [1995]).
Peters, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Defendant did not seek anadjournment to secure her own experts or more fully respond to the expert opinions.