| Pomeroy v Gelber |
| 2014 NY Slip Op 03001 [117 AD3d 1161] |
| May 1, 2014 |
| Appellate Division, Third Department |
[*1]
| Glenn Pomeroy et al., Respondents, v Terrence Gelber,Appellant. |
Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel),for appellant.
James M. Hartmann, Delhi, for respondents.
Egan Jr., J. Appeal from an order of the Supreme Court (Lambert, J.), enteredDecember 5, 2012 in Delaware County, which denied defendant's motion for summaryjudgment dismissing the complaint.
At approximately 10:00 a.m. on March 8, 2011, plaintiff Glenn Pomeroy allegedlyslipped and fell while descending the front stairs of his next-door neighbors'single-family residence located on East Street in the Town of Walton, Delaware County.The house in question was owned by defendant, who lived out of town, and rented byKellie Bush and Gary Tompkins, who resided there with their children. On the morningin question, Pomeroy went to speak with Bush and Tompkins and ascended the threesteps to the residence without incident. As he was leaving the residence, however,Pomeroy allegedly slipped on a patch of black ice—estimated by him to measureapproximately 18 inches in length—located on the second step, causing him toland on the sidewalk and, among other things, fracture his left ankle.
Pomeroy and his wife, derivatively, thereafter commenced this negligence actionagainst defendant seeking to recover for the injuries sustained. Following joinder of issueand discovery, defendant moved for summary judgment dismissing the complaintcontending that, as an out-of-possession landlord, he bore no responsibility forPomeroy's alleged injuries and, in any event, he lacked actual or constructive notice ofany allegedly dangerous condition existing upon the property. Plaintiffs opposed themotion, arguing that triable issue of facts existed as to whether [*2]defendant had assumed responsibility for snow and iceremoval at the premises and, further, whether the ice had existed for a sufficient period oftime to permit defendant to discover and remedy it. Supreme Court denied the motion,finding that the parties' conflicting submissions presented numerous questions of fact,and this appeal by defendant ensued.
We affirm. "As a general rule, an out-of-possession landlord is not responsible fordangerous conditions existing upon leased premises after possession of the premises hasbeen transferred to the tenant. Exceptions to this rule include situations where thelandlord retains control of the premises, has specifically contracted to repair or maintainthe property, has through a course of conduct assumed a responsibility to maintain orrepair the property or has affirmatively created a dangerous condition" thereon (Vanderlyn v Daly, 97 AD3d1053, 1055 [2012], lv denied 20 NY3d 853 [2012] [internal quotation marksand citations omitted]; seePatrick v Grimaldi, 100 AD3d 1320, 1320-1321 [2012]; Bush v Mechanicville WarehouseCorp., 69 AD3d 1207, 1207 [2010]). That said, "without notice of a specificdangerous condition, an out-of-possession landlord cannot be faulted for failing to repair[or otherwise rectify] it" (Chapman v Silber, 97 NY2d 9, 20 [2001]).Accordingly, "[t]he burden is on the plaintiff to prove actual or constructive notice and areasonable opportunity to repair [or remedy] the dangerous condition" (Oates v Iacovelli, 80 AD3d1059, 1060 [2011]).
In support of his motion for summary judgment, defendant testified that he delegatedmanagement of his various rental properties—including the residence in whichBush and Tompkins resided—to a local realty company, whose agent, Debra Holt,was responsible for locating tenants, collecting rents and "call[ing] a handyman if there isa complaint about anything." Defendant further testified that Bush andTompkins—as tenants—were "responsible for the use and maintenance andupkeep" of the premises, including all snow and ice removal, and Bush and Tompkins, inturn, conceded that they had been advised by Holt that they were responsible for all snowremoval and salting operations at their residence. Additionally, defendant testified thatany inspections of the leased premises would have occurred between occupancies andthat Holt most likely would have been the person to perform such inspections, statingthat "[s]he takes care of pretty much everything for me." Defendant acknowledged,however, that there was no written lease governing Bush and Tompkins' use andoccupancy of the premises (or responsibility for snow and ice removal), nor was there awritten property management agreement governing Holt's responsibilities with respectthereto, and defendant admitted that he previously had undertaken certain repairs at thepremises.
Even assuming that the foregoing proof was sufficient to discharge defendant's initialburden on the motion for summary judgment as to his status as an out-of-possessionlandlord, Holt's examination before trial testimony—submitted by plaintiffs inopposition to defendant's motion—was sufficient to raise a question of fact on thispoint. Specifically, Holt testified that if a tenant called with a complaint, she wouldcontact defendant, who "ha[d] a handyman that [took] care of the properties." Accordingto Holt, she "never hired anybody" to perform repairs at defendant's various properties.As for snow and ice removal at the premises in question, Holt acknowledged that Bushand Tompkins were responsible for shoveling and salting, but stated that if Bush andTompkins failed to fulfill their obligations in this regard, "[defendant] would have calledsomebody and we would have had it taken care of." As Holt succinctly put it, "[i]f atenant couldn't do it, then [defendant] would." Such testimony, in our view, is sufficientto raise a question of fact as to whether defendant, through a course of conduct, assumeda responsibility to maintain the property—particularly with respect to snow and iceremoval—and retained a right [*3]to reenter inorder to do so.
As to the issue of notice, the record reflects that defendant satisfied his initial burdenof demonstrating that he lacked actual or constructive notice of the alleged dangerouscondition. Notably, defendant testified that he had not received any prior complaintsregarding either the steps in general or any snow or ice accumulation thereon, and bothBush and Tompkins testified that they did not register any complaints with respectthereto. Additionally, Bush testified that "the steps were 95 percent dry" and "bare" onthe morning of Pomeroy's alleged accident, and Pomeroy, who ascended the stepswithout any difficulty, acknowledged that he did not see the black ice until after hefell.
In opposition to defendant's motion, however, plaintiffs tendered the affidavit of ameteorologist who, after reviewing the recent snowfall data, weather conditions andtemperatures for the two days preceding plaintiff's fall, opined "with a reasonable degreeof certainty that the icy patch upon which . . . Pomeroy [fell] on the morningof March 8, 2011 existed no later than the midday hours of March 6, 2011 and remainedcontinuously thereafter to the time that he fell on March 8, 2011 at approximately 10A.M."[FN*]
Additionally, despite Bush's and Tompkins' respective testimony that the steps wereessentially clear at the time that Pomeroy fell, each nonetheless acknowledged that therewas some form of precipitation present—with Tompkins testifying that there was"a little bit of frost" on the top step and Bush testifying that there was a small amount of"water slush" on the second step. Such proof, viewed in the light most favorable toplaintiffs (see Beckerleg vTractor Supply Co., 107 AD3d 1208, 1209 [2013]), was sufficient to raise aquestion of fact as to whether the icy condition that allegedly precipitated Pomeroy's fall"was visible and apparent and existed for a sufficient period of time prior to the accidentto permit . . . defendant[ ] to discover it and take corrective action" (Marino v A.G. Props. of Kingston,LLC, 85 AD3d 1429, 1430 [2011]; see Rodriguez v Binghamton Hous. Auth., 101 AD3d1222, 1224 [2012]; compare Decker v Schildt, 100 AD3d 1339, 1341 [2012]).Accordingly, in light of the various questions of fact presented by this record, SupremeCourt properly denied defendant's motion for summary judgment dismissing thecomplaint.
Stein, J.P., McCarthy and Rose, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *:The meteorological datarelied upon by plaintiffs' expert accompanied this affidavit. Notably, this data directlycontradicted Bush's assertion that the last snowfall prior to Pomeroy's accident occurredat the end of February.