| Scott v Redl |
| 2007 NY Slip Op 06858 [43 AD3d 1031] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Frances Scott, Appellant, v Herbert Redl et al.,Respondents, et al., Defendants. |
—[*1] Goldberg Segalla, LLP, Albany, N.Y. (Jonathan M. Bernstein of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated June19, 2006, as granted that branch of the motion of the defendants Herbert Redl and Sue Ann Redlwhich was for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendants Herbert Redl and Sue Ann Redl which was for summaryjudgment dismissing the complaint insofar as asserted against them is denied.
The plaintiff allegedly was injured when she slipped and fell on ice on premises owned bythe defendants Herbert Redl and Sue Ann Redl (hereinafter the defendants). The premises wereused for a storage unit rental business, which was owned by Herbert Redl. Prior to the plaintiff'saccident, the defendants had entered into a management agreement with Rent-A-Space SelfStorage, Inc. (hereinafter Rent-A-Space). Pursuant to its management duties, Rent-A-Space hiredthe plaintiff as property manager. The defendants Blacktop Maintenance Corp. and HHRConstruction Corp. were under contract to perform snow removal and salting services on thepremises.
The plaintiff's accident occurred on January 31, 2003 as she was walking from the [*2]office to the rental units, to show two customers a unit. There hadbeen a snow storm four days earlier. The plaintiff testified that the path from her office to theunits was slippery, and that she slipped on ice.
The defendants moved, inter alia, for summary judgment dismissing the complaint insofar asasserted against them on the ground that their duty as landowners to maintain the premises in areasonably safe condition was displaced by their management agreement with Rent-A-Space.They also argued that they did not have actual or constructive notice of the icy condition. TheSupreme Court granted that branch of their motion. We reverse.
Regardless of whether the management agreement between the defendants and Rent-A-Spacewas comprehensive, a "[land]owner has a nondelegable duty to provide the public with areasonably safe premises" (Backiel v Citibank, 299 AD2d 504, 505 [2002]). Thisincludes the duty to provide "its employees and the employees of independent contractors with asafe place to work" (id. at 507). Therefore, the defendants owed a duty to the plaintiff, asan employee of an independent contractor, to maintain the premises in a reasonably safecondition, and that duty could not be delegated to Rent-A-Space.
"While an owner may not be held liable for an injury to an employee of an independentcontractor caused by a condition which the employee was called upon to remedy. . .,the employee does not assume the risk of injury from other defects or dangerous conditions in thepremises which are outside the scope of that employee's work" (id.). Although thedefendants argued that it was the plaintiff's responsibility to report on and remedy dangerousconditions on the premises, the plaintiff raised a question of fact as to whether these were in factin her responsibilities and, thus, whether she was injured by the same dangerous condition shewas called upon to remedy.
Moreover, the Supreme Court erred in concluding, as a matter of law, that the defendants didnot have actual or constructive notice of the icy condition. A property owner will be held liablefor a slip-and-fall accident involving snow and ice on its property only when it created thedangerous condition which caused the accident (not alleged here), or had actual or constructivenotice of that condition (see Fahey vSerota, 23 AD3d 335, 336 [2005]). "To constitute constructive notice, a defect must bevisible and apparent and it must exist for a sufficient length of time prior to the accident topermit [the] defendant[s]. . . to discover and remedy it" (Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837 [1986]; see Goodwin v Knolls at StonyBrook Homeowners Assn., 251 AD2d 451, 452 [1998]).
As to actual notice, the defendants established a prima facie case by demonstrating that theydid not regularly inspect the premises and had not been to the premises shortly before theaccident. The defendants also satisfied their prima facie burden as to constructive notice bysubmitting the plaintiff's testimony that she did not see the ice upon which she fell either beforeor after her accident (see Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998]).
However, the plaintiff raised a triable issue of fact in opposition. Specifically, the plaintiffsubmitted an affidavit from the customer who was with her when she fell. The customer reportedthat the path leading from the office to the storage units was "a solid sheet of ice about 1½ [inches] thick." This was sufficient to raise an issue of fact as to whether the allegedly dangerouscondition was visible and apparent (seeBullard v Pfohl's Tavern, Inc., 11 AD3d 1026 [2004]). In addition, the plaintiff offeredan affidavit from an expert meteorologist who, after analyzing the weather [*3]conditions on the day of the accident and on the days preceding,concluded that the ice upon which the plaintiff allegedly slipped would have formed no later than4:00 p.m. on the day before the accident, or 18½ hours earlier. This raised a triable issue offact as to whether the defendants had sufficient time in which to remedy the condition (seeBoyko v Limowski, 223 AD2d 962, 963-964 [1996]). Accordingly, that branch of thedefendants' motion which was for summary judgment dismissing the complaint insofar asasserted against them should have been denied. Prudenti, P.J., Mastro, Angiolillo and Dickerson,JJ., concur.