| Zibro v Saratoga Natl. Golf Club, Inc. |
| 2008 NY Slip Op 07826 [55 AD3d 998] |
| October 16, 2008 |
| Appellate Division, Third Department |
| Edward J. Zibro III et al., Appellants, v Saratoga National Golf Club,Inc., et al., Respondents. (And Third-Party and Fourth-Party Actions.) |
—[*1] Napierski, Vandenburgh & Napierski, L.L.P., Albany (Thomas J. O'Connor of counsel), forSaratoga National Golf Club, Inc. and another, respondents. Office of Michael Emminger, Albany (Mark P. Donohue of counsel), for The Pike Company,respondent. Goldberg Segalla, L.L.P., Albany (Latha Raghavan of counsel), for DB Building, Inc.,respondent.
Lahtinen, J. Appeals (1) from an order of the Supreme Court (McNamara, J.), entered June 18,2007 in Albany County, which, among other things, granted defendants' motion for summary judgmentdismissing the complaint, and (2) from an order of said court, entered December 26, 2007 in AlbanyCounty, which denied plaintiffs' motion for reconsideration.
Defendant Saratoga National Golf Club, Inc. opened a facility known as Saratoga National GolfClub in the spring of 2001 and, on June 21, 2001, plaintiff Edward J. Zibro III (hereinafter plaintiff)slipped and fell on the wood decking of a porch that runs along the north side of the newly constructedclubhouse. In the relevant area, the porch was covered overhead, but it was open to the elements on itsnorth side. It was a rainy day and the mahogany deck of the clubhouse porch was wet. Immediatelyprior to the accident, plaintiff walked along a portion [*2]of the porchto a north entrance of the clubhouse and, when he stepped back from the door to let other patrons exit,he allegedly slipped on the wet surface of the porch deck.
Plaintiff, and his wife, derivatively, commenced this action against Saratoga National Golf Club,Inc. and defendant Tomsargo Corporation. Defendants brought a third-party action against The PikeCompany, Inc. (the general contractor) and Chris Consultants, Inc. (the architect). Pike started afourth-party action against Deridder Masonry, Inc. (the subcontractor that poured the concretesubfloor of the porch) and DB Building, Inc. (the subcontractor that installed the mahogany flooring).After extensive disclosure, defendants, third-party defendants and fourth-party defendants all movedfor summary judgment. Supreme Court granted defendants' motion, and denied the other motions asmoot. Plaintiffs' motion to reargue and renew was denied. Plaintiffs appeal.
A landowner's property must be maintained in a "reasonably safe condition in view of all thecircumstances, including the likelihood of injury to others, the seriousness of the injury, and the burdenof avoiding the risk" (Peralta v Henriquez, 100 NY2d 139, 144 [2003] [internal quotationmarks and citation omitted]). To impose liability on an owner of premises where a slip and fall hasoccurred there must be proof reflecting a dangerous or defective condition which the owner created orhad actual or constructive knowledge about (see Miller v Gimbel Bros., 262 NY 107,108-109 [1933]; Lowrey v Cumberland Farms, 162 AD2d 777, 778 [1990]). The fact that adeck or surface which is fully or partially exposed to the elements is wet following a recent rainfall isnot, by itself, sufficient to establish a triable issue regarding the liability of the owner (see Todt vSchroon Riv. Campsite, 281 AD2d 782, 783 [2001]; Wessels v Service Mdse., 187AD2d 837, 837 [1992]). Liability may nonetheless be implicated when, for example, there is proof of acondition that unreasonably heightened the risk typically encountered under such circumstances (see O'Neil v Holiday Health & Fitness Ctrs. ofN.Y., 5 AD3d 1009, 1009-1010 [2004]; 1 NY PJI 2:91, at 573 [2008]; see alsoPignatelli v Gimbel Bros., Inc., 285 App Div 625, 627 [1955], affd 309 NY 901 [1955];Thompson v Palladino, 250 App Div 817, 817-818 [1937], affd 275 NY 633[1937]).
Initially, we note that, contrary to plaintiffs' argument, Supreme Court did not decide the motion ona ground not asserted before the court. Moreover, defendants submitted sufficient proof to satisfy theirthreshold burden (see Candelario vWatervliet Hous. Auth., 46 AD3d 1073, 1074 [2007]; Dominy v Golub Corp., 286AD2d 810, 810 [2001]). It thus became incumbent upon plaintiffs to produce proof raising a triableissue (see Tenkate v Tops Mkts., LLC,38 AD3d 987, 988 [2007]; Kappes vCohoes Bowling Arena, 2 AD3d 1034, 1035 [2003]). When considering whether a triableissue exists, the evidence in the record is viewed in the light most favorable to the party opposingsummary disposition (see Torosian v BigsbeeVil. Homeowners Assn., 46 AD3d 1314, 1315 [2007]; Rosati v Kohl's Dept. Stores, 1 AD3d 674, 674 [2003]).
Plaintiffs produced evidence that the original architectural plans provided for the deck to beconstructed of broom finish concrete with a slight slope away from the building. Before the scheduledopening, however, defendants changed those plans and decided to have a mahogany deck installed.Because of a variety of circumstances, the mahogany deck was not sloped as called for in thearchitectural plans. An architect with the firm that prepared the original design of the project indicated athis deposition that a deck without a slope that permitted puddling of water was not in accordance withgood and accepted architectural practices due to both maintenance and safety issues. Pike's projectmanager for the clubhouse construction stated at his deposition that the construction of a deck without aslope away from the building was [*3]contrary to good and acceptedbuilding practices because it could create puddling resulting in a slipping hazard. Both of theseindividuals were qualified in their fields and fully familiar with the relevant aspects of this project. Apunch list prepared by another architect, who was monitoring the project, criticized aspects of thedeck, noting, among other things, that the "surface is too slick [and] ponding is occurring on top."Plaintiff described the deck as "very wet," and he related that, when he stepped backward on the deckfrom the entrance door, he fell because his foot hit a puddle of water. Viewed most favorably toplaintiffs, triable issues are raised by this proof which indicates that the construction of the deckdeparted from acceptable standards creating an unreasonable risk of areas of excess or puddling wateron the deck, and that plaintiff slipped in such an area. Accordingly, we conclude that defendants'motion for summary judgment should have been denied.
The appeal from the order denying plaintiffs' motion to reargue and renew is academic. Themotions of the third and fourth-party defendants, which were denied by Supreme Court as moot (andwhose papers were not included in the record on appeal), are reinstated for consideration by SupremeCourt to the extent this decision does not dispose of the issues asserted therein.
Peters, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the order entered June 18,2007 is reversed, on the law, with costs, and defendants' motion for summary judgment denied.Ordered that the appeal from the order entered December 26, 2007 is dismissed, as academic.