| Betz v Daniel Conti, Inc. |
| 2010 NY Slip Op 00086 [69 AD3d 545] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Edelgard Betz, Respondent, v Daniel Conti, Inc., et al.,Appellants. |
—[*1] Bradley Gillam, Melville, N.Y. (Jeffrey K. Levine of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Molia, J.), dated May 6, 2009, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleges that, on May 25, 2005, she sustained injuries as a result of a slip and fallon a brick walkway on premises owned by the defendants. The defendants moved for summaryjudgment dismissing the complaint on the ground that the walkway was not defective, and that,even if a defect existed, they neither created it nor had actual or constructive notice of itsexistence.
Although the affidavit of the defendants' expert, which was notarized outside the state, failedto conform to the requirements set forth in CPLR 2309 (c), contrary to the Supreme Court'sdetermination, such defect was not fatal, as the plaintiff was not prejudiced thereby (seeCPLR 2001; Smith v Allstate Ins.Co., 38 AD3d 522 [2007]; seealso Falah v Stop & Shop Cos., Inc., 41 AD3d 638 [2007]).
Nonetheless, considering the papers submitted by the defendants in support of their motion,including their expert's affidavit, the defendants failed to establish, prima facie, that the walkwaywas not defective, or that, if the alleged defect existed, they did not create or have actual orconstructive notice thereof (see Roy vCity of New York, 65 AD3d 1030 [2009]; Alexander v Rum Point Tavern, Inc., 62 AD3d 731 [2009]; Gullo-Georgio v Dunkin' Donuts Inc.,38 AD3d 836 [2007]). The expert's affidavit did not address the plaintiff's allegation in hercomplaint that the accident occurred because the walkway was "uneven, wet, moldy, mosscovered, grassy, slippery, dangerous and hazardous." Instead, the defendants' expert contendedthat the walkway was not defective because it complied with the provisions of the State UniformFire Prevention and Building Code (19 NYCRR parts 1220-1228) applicable to newlyconstructed handicapped accessible ramps (see Building Code of NY State §1003.3.4 [2007], as incorporated by reference into 19 NYCRR 1221.1 [a]), which was notresponsive to the plaintiff's allegations regarding the cause of her accident. Further, there was noevidence in the record to suggest that the plaintiff fell on any type of ramp.[*2]
Moreover, in her deposition testimony, the plaintiff notedthat she had made several complaints to the defendants about people falling on the walkway, aswell as the dangerous condition of the walkway. In his deposition testimony, the individualdefendant recalled receiving complaints about a walkway on the premises prior to the subjectaccident and, although he speculated that the complaints and accidents may have concerned adifferent walkway, he admitted that the defendants did not maintain records of complaints oraccidents. The individual defendant also explained that the defendants did not keep maintenancerecords regarding the premises until 2006 and, thus, he did not know what maintenance, if any,had been performed on the walkway prior to the subject accident.
Accordingly, the defendants failed to establish, prima facie, that the walkway was notdefective, or that, if the walkway were defective, they neither created the alleged dangerouscondition nor had actual or constructive notice of its existence for a sufficient length of time todiscover and remedy it (see Roy v Cityof New York, 65 AD3d 1030 [2009]; Alexander v Rum Point Tavern, Inc., 62 AD3d 731 [2009]; Kucevic v Three Park Ave. Bldg. Co.,L.P., 55 AD3d 792 [2008]; cf.Shindler v Warf, 66 AD3d 762 [2009]). Since the defendants failed to meet theirburden, we need not consider the sufficiency of the papers submitted by the plaintiff inopposition to the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]).
The defendants' remaining contention—that the alleged defect was not the proximatecause of the subject accident—is raised for the first time on appeal and, thus, is notproperly before this Court (see GreenApple Mgt. Corp. v Aronis, 55 AD3d 669 [2008]). Mastro, J.P., Fisher, Belen andAustin, JJ., concur.