| Godfrey v Town of Hurley |
| 2009 NY Slip Op 09593 [68 AD3d 1527] |
| December 24, 2009 |
| Appellate Division, Third Department |
| Susan Ross Godfrey, Appellant, v Town of Hurley,Respondent. |
—[*1] Whiteman & Frum, Elmsford (H. Malcolm Stewart of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (Egan, Jr., J.), entered November 24,2008 in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this negligence action to recover for injuries sustained when she fellwhile disposing of brush at a former landfill owned and operated by defendant. Plaintiff testifiedthat, after unloading the brush from her pickup truck, she stepped on something on the groundthat made her foot turn over sideways and caused her to fall. Although plaintiff described the siteas being littered with sticks, twigs, branches, brush and rocks, she was unable to say whatspecific debris had caused her fall. Following discovery, defendant moved for summaryjudgment on the ground that plaintiff cannot establish that it had actual or constructive notice ofthe dangerous condition upon which she fell. Supreme Court granted the motion and plaintiffappeals.
To demonstrate its entitlement to summary judgment, defendant was "required to establish asa matter of law that [it] maintained the property in question in a reasonably safe condition andthat [it] neither created the allegedly dangerous condition existing thereon nor had actual orconstructive notice thereof" (Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 679[2001]; see Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2009]; Candelario vWatervliet Hous. Auth., 46 AD3d 1073, 1074 [2007]; Mokszki v Pratt, 13 AD3d709, 710 [2004]). In support of its motion, defendant submitted only the pleadings, an attorney'saffidavit and plaintiff's [*2]testimony describing how theaccident occurred. Focusing on plaintiff's inability to identify the object on which she fell andthe lack of evidence as to how long it may have been present, defendant argued that there is noevidence of actual or constructive notice of a dangerous condition. Conspicuously absent,however, is any evidence that defendant maintained the site in a reasonably safe condition at anytime before plaintiff fell, evidence necessitated by plaintiff's description of the littered conditionof the site. Since defendant failed to meet its initial burden to show that it had no constructivenotice because its premises were properly maintained, Supreme Court erred in granting itsmotion for dismissal (see Braudy v Best Buy Co., Inc., 63 AD3d at 1092; VanBenschoten v Village of Margaretville, 38 AD3d 1027 [2007]).
Nor did plaintiff's failure to identify what caused her to fall render her complaint sospeculative as to warrant dismissal (see Belles v United Church of Warsaw, 66 AD3d1470, 1470-1471 [2009]; cf. Oettinger v Amerada Hess Corp., 15 AD3d 638, 639[2005]). Plaintiff testified as to the variety of debris in the area where she fell and defendantfailed to demonstrate that the debris did not pose a danger, that she fell on her own brush or thatsomething other than the debris, such as a misstep, caused her to fall.
Mercure, J.P., Spain, Kane and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion denied.