| Raczes v Horne |
| 2009 NY Slip Op 09590 [68 AD3d 1521] |
| December 24, 2009 |
| Appellate Division, Third Department |
| Deborah A. Raczes, Appellant, v Marcia D. Horne,Respondent. |
—[*1] Hiscock & Barclay, L.L.P., Albany (David M. Cost of counsel), for respondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Kramer, J.), entered May 18,2009 in Schenectady County, which granted defendant's motion for summary judgmentdismissing the complaint.
Defendant is the owner and landlord of a two-family residential dwelling located in the Cityof Schenectady, Schenectady County. In order to maintain this building and others owned byher, defendant has used the services of a maintenance person, Vincent Meyers, for the pastseveral years.[FN1]Plaintiff began renting the upstairs apartment from defendant in August 2003, which is accessedby two sets of stairs with adjacent railings attached to the wall. Plaintiff asserts that, whiledescending the apartment stairs in July 2004, the railing she was holding pulled away from thewall, causing her to fall down the stairs and sustain injuries. In 2007, [*2]plaintiff commenced this negligence action against defendant.Following joinder of issue and discovery, defendant moved for summary judgment dismissingthe complaint. Supreme Court granted the motion, prompting this appeal.
In order to establish entitlement to summary judgment, defendant had the threshold burden"of establishing that [she] maintained the premises in a reasonably safe condition and neithercreated nor had actual or constructive notice of the allegedly dangerous condition"(Candelario v Watervliet Hous. Auth., 46 AD3d 1073, 1074 [2007]; see Reid vSchalmont School Dist., 50 AD3d 1323, 1324 [2008]). Here, defendant met that initialburden with proof demonstrating that she did not create the unsafe condition nor have actual orconstructive knowledge of the allegedly defective railing. Along with her own affidavit anddeposition, defendant produced the deposition testimony of Meyers who affirmatively statedthat, prior to plaintiff's accident, he received no complaints about the railing and performed nomaintenance on it other than occasionally "check[ing] it and giv[ing] the screws a little turn tomake sure everything was tight." Other proof submitted by defendant included plaintiff'sdeposition wherein she acknowledged that she inspected the apartment prior to moving in andnoted that "[e]verything looked good." While plaintiff also claimed that the railing later became"wobbly," she admitted that she never informed plaintiff or Meyers of any problem. Plaintiff'sformer boyfriend, who witnessed the accident, averred that he had visited plaintiff many timesbefore the incident and the railing never appeared loose. Defendant also submitted an inspectionreport performed at the apartment in September 2003 by the Schenectady Municipal HousingAuthority which did not disclose any problems with the railing.
Since defendant met her threshold burden for her motion, it was then incumbent uponplaintiff to "come forward with evidence establishing triable issues in order to avert summarydisposition" (Candelario v Watervliet Hous. Auth., 46 AD3d at 1074). Viewing the proofin the light most favorable to plaintiff (see id.), we conclude that she did not raise anarguable issue of fact supporting her claim that defendant had actual and/or constructive noticeof the faulty railing. Notably, in opposing the motion, plaintiff principally relies upon her claimthat, after the accident, Meyers told her that "this is the third time that I fixed this railing and I'mgetting sick of it!" In his deposition testimony, Meyers denied any recollection of making such astatement, and Supreme Court determined that the alleged remark was inadmissible hearsay(see Davis v Golub Corp., 286 AD2d 821, 822 [2001]). For the reasons that follow, weagree.
Contrary to plaintiff's argument that the statement was attributable to defendant andadmissible as a party admission, there is nothing in this record that raises an inference thatMeyers had such broad authority that he could be deemed an agent or employee of defendantwho was "authorized to make the alleged statement [on behalf of defendant]" (Tyrrell vWal-Mart Stores, 97 NY2d 650, 652 [2001]; see Loschiavo v Port Auth. of N.Y. & N.J., 58 NY2d 1040, 1041 [1983]; Laguesse v Storytown U.S.A., 296 AD2d 798, 800[2002]; see also Barker and Alexander, Evidence in New York State and Federal Courts§ 8:20 [5 West's NY Prac Series 2009]). Since plaintiff failed to produce "any evidence asto the speaking authority" of Meyers (Alvarez v First Natl. Supermarkets, Inc., 11 AD3d572, 574 [2004]), the statement was properly found to be inadmissible (see Aquino vKuczinski, Vila & Assoc., P.C., 39 AD3d 216, 221 [2007]). Moreover, given the absence ofany other proof raising an issue as to actual or constructive notice,[FN2]we conclude that the complaint [*3]was properly dismissed.
All remaining arguments raised by plaintiff have been examined and found to be lacking inmerit.
Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: According to the testimonies ofdefendant and Meyers, Meyers is a self-employed maintenance person who submitted itemizedbills for any hourly work he performed at defendant's properties, which she would then pay bycheck. Pursuant to this arrangement, Meyers was authorized to make certain minor repairsbrought to his attention by a tenant without first consulting defendant, but defendant needed topreapprove any "extensive repair."
Footnote 2: The mere fact that defendantundertook responsibility for maintenance at her rental properties does not, standing alone, raise aquestion of fact as to constructive notice. Instead, plaintiff was required to show that the allegeddefect was apparent for a sufficient time prior to the accident so as to "permit defendant[ ] todiscover it and take corrective action" (Mokszki v Pratt, 13 AD3d 709, 710 [2004][citation omitted]). Since plaintiff failed to produce admissible proof in that regard, thisargument is unpersuasive.