| Ensher v Charlton |
| 2009 NY Slip Op 05902 [64 AD3d 1032] |
| July 16, 2009 |
| Appellate Division, Third Department |
| Kimberly Ensher, Appellant, v Ingrid Charlton et al., as Cotrusteesof the Trust of Charles Tso Pin Wang, et al., Respondents. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Vestal (Cynthia A.K. Manchester of counsel), forIngrid Charlton and another, respondents. Rossi & Murnane, New York Mills (Vincent J. Rossi Jr. of counsel), for Rental CompanyOne, Inc., respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered July 2,2008 in Otsego County, which granted defendants' motions for summary judgment dismissingthe complaint.
Plaintiff was a college student who, along with three roommates, had rented a house in theCity of Oneonta, Otsego County. Plaintiff alleged that on the day after she moved into the house,she was injured when, while attempting to open a window, her arm broke through a pane ofglass, resulting in a laceration of a nerve in her right wrist. Plaintiff commenced this actionagainst the owners of the house and defendant Rental Company One, Inc., the entity chargedwith managing the property, claiming that the window was defective and, as it existed on the dayof the accident, constituted a dangerous condition that caused her injury. The owners answeredand asserted cross claims against Rental Company One. Thereafter, the owners moved forsummary judgment contending, among other things, that plaintiff had failed to establish that thewindow was defective or dangerous. Rental Company One cross-moved for summary judgmentagainst both plaintiff and the owners seeking dismissal of all claims made against it. SupremeCourt granted both motions and dismissed the complaint, prompting this appeal by plaintiff.[*2]
We affirm. To prevail on their summary judgmentmotions, defendants must "establish as a matter of law that they maintained the property inquestion in a reasonably safe condition and that they neither created the allegedly dangerouscondition existing thereon nor had actual or constructive notice thereof" (Richardson vRotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; accord Elsey v Clark Trading Corp., 57 AD3d 1330, 1331 [2008]).To that end, defendants presented evidence that the window was inspected immediately after theaccident and was found to be in good working order. They also presented an affidavit of anexpert who inspected the window after plaintiff's accident and concluded that the window metindustry standards and was a type customarily used in the construction of such houses. Theexpert also concluded that the window, as it existed on the date of his inspection, was notdefective and did not appear to have been painted shut. Finally, defendants established that nocomplaints had ever been made by plaintiff, her housemates or other tenants who had previouslyoccupied the premises regarding the condition of this window or any other windows in the houseprior to the accident. Based upon this evidence, the burden shifted to plaintiff to demonstrate theexistence of a triable issue of fact that would warrant denial of defendants' motions for summaryjudgment (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Cantwell v Rondout Sav. Bank, 55AD3d 1031, 1032 [2008]; Sowa vS.J.N.H. Realty Corp., 21 AD3d 893, 895 [2005]).
In that regard, plaintiff, in essence, claims that this accident occurred because the house hadbeen painted just prior to her taking occupancy and the window in question had been paintedshut. However, in her deposition, plaintiff stated that she did not know why the window wouldnot open and was not certain if it was painted shut. Another occupant testified that while many ofthe windows in the house were difficult to open, she could not recall if the window in question,or any of the windows in the house, had been painted shut and, as a result, could not be opened.Based on this evidence, we conclude that plaintiff failed to create a question of fact as to whetherthe window, as it existed on the day of the accident, constituted a dangerous or defectivecondition (see Crawford v Pick Quick Foods, 300 AD2d 431, 431 [2002]; Cartucciov KCMC Trust, 280 AD2d 831, 831-832 [2001]) or, if it was dangerous or defective, thatdefendants either created the condition (see Mokszki v Pratt, 13 AD3d 709, 710 [2004]) or had actualnotice of it (see Habib v Baldini, 51AD3d 1250, 1251 [2008]). In addition, there is no basis in the record to conclude that anysuch dangerous or defective condition, if it did exist, was readily visible or apparent prior toplaintiff's accident in order to infer constructive notice (see Gordon v American Museum ofNatural History, 67 NY2d 836, 837-838 [1986]; Mokszki v Pratt, 13 AD3d at 710;Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 142 [2000]). As aresult, Supreme Court properly granted defendants' motions for summary judgment (see Alexy v Stein, 16 AD3d 989,990 [2005], lv dismissed and denied 5 NY3d 755 [2005]; Smith v J.B.H., Inc.,300 AD2d 874, 875 [2002]).
In light of our decision, we need not reach the parties' remaining arguments.
Mercure, J.P., Rose, Kane and Garry, JJ., concur. Ordered that the order is affirmed, withone bill of costs.