| Bush v Mechanicville Warehouse Corp. |
| 2010 NY Slip Op 00446 [69 AD3d 1207] |
| January 21, 2010 |
| Appellate Division, Third Department |
| William P. Bush, Individually and as Parent and Guardian of TylerMorey, an Infant, Respondent, v Mechanicville Warehouse Corporation,Appellant. |
—[*1] DeGraff, Foy & Kunz, L.L.P., Albany (David F. Kunz of counsel), for respondent.
Peters, J. Appeal from an order of the Supreme Court (Williams, J.), entered December 16,2008 in Saratoga County, which partially denied defendant's motion for summary judgmentdismissing the complaint.
Plaintiff sustained severe injuries when he fell from a ladder in a warehouse owned bydefendant and leased by plaintiff's employer. Plaintiff claims that at the time of the incident, hewas attempting to free a box of merchandise that was stuck to the surface of a pallet as a result ofwater leakage from the warehouse's roof. Plaintiff, individually and on behalf of his minor son,thereafter commenced this action against defendant alleging, among other things, causes ofaction for common-law negligence and violations of Labor Law § 200. Following joinderof issue and discovery, defendant moved for summary judgment dismissing the complaint.Finding that plaintiff raised triable issues of fact as to its negligence and Labor Law § 200claims, Supreme Court denied defendant's motion as to these causes of action. Defendant nowappeals.
Labor Law § 200 codifies the common-law duty of an owner to maintain its premisesin a reasonably safe condition (see Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872[1995]; Weinberg v AlpineImprovements, LLC, 48 AD3d 915, 918 [2008]). While an out-of-possession landlord isgenerally not responsible for dangerous conditions existing upon the leased premises, one who iscontractually responsible for repair and maintenance, or who assumes responsibility for repairsthrough a course of conduct, may be liable for unsafe conditions on the property (seeRossal-Daub v Walter, 58 AD3d 992, 993-994 [2009]; Davison v Wiggand, 259AD2d 799, 801 [1999], lv denied 94 NY2d 751 [1999]; Webb v Audi, 208 AD2d1122 [1994]). Here, defendant was obligated under the lease to maintain and repair all structuralportions of the warehouse, including the roof, and did in fact attempt to repair the roof on prioroccasions. Thus, to establish entitlement to summary judgment on plaintiff's Labor Law §200 and negligence claims, defendant "was required to establish, as a matter of law, that it didnot create the alleged dangerous condition and did not have actual or constructive notice of thatcondition" (Wolfe v KLR Mech.,Inc., 35 AD3d 916, 919 [2006]; accord Weinberg v Alpine Improvements, LLC,48 AD3d at 918-919; see Gadani vDormitory Auth. of State of N.Y., 43 AD3d 1218, 1221 [2007]). On this record, we findthat defendant did not make that showing.
"A plaintiff can establish constructive notice through evidence that the defendant 'was awareof an ongoing and recurring unsafe condition which regularly went unaddressed' " (Mazerbo v Murphy, 52 AD3d1064, 1066 [2008], appeal dismissed 11 NY3d 770 [2008], quoting Kivlan vDake Bros., 255 AD2d 782, 783 [1998]; see Talavera v New York City Tr. Auth., 41 AD3d 135, 136[2007]). Thus, where "a property owner has 'actual knowledge of the tendency of a particulardangerous condition to reoccur, he [or she] is charged with constructive notice of each specificrecurrence of that condition' " (Kivlan v Dake Bros., 255 AD2d at 783, quotingColumbo v James River, II, Inc., 197 AD2d 760, 761 [1993]; accord Mazerbo vMurphy, 52 AD3d at 1066).
Here, the record demonstrates that the roof of the warehouse had a chronic leakage problemand that defendant was fully aware of its defective condition and knew that the infiltrating watercaused by the leaks could cause damage to the stored material. John Garry, defendant's principal,made periodic visits to the warehouse and personally observed water dripping from the roof on anumber of occasions. Despite having the roof leaks patched on numerous prior occasions, therepairs were ineffective in remedying the roof's leakage problem. Notably, Garry stated that healso observed that plastic sheeting had been placed on some of the products stored therein inorder to divert water from them. Moreover, plaintiff proffered the expert affidavit of FrederickBremer, an architect with extensive experience in the design, construction, inspection andmaintenance of warehouses and other large storage facilities. Bremer opined that defendantfailed to maintain the roof in accordance with industry standards and to properly evaluate andaddress the condition of the roof despite notice of the ongoing chronic leaks and ineffectivenessof the prior patch work in remedying the problem. He further opined that the infiltration of waterinto the warehouse, either directly or through the moisture from the chronic leak condition,resulted in the dampening of the pallets and inventory stored thereon and, within a reasonabledegree of certainly, caused the box at issue to adhere to the pallet.
If credited, plaintiff's proof would permit a jury to find that defendant had constructivenotice of the dangerous condition where the accident occurred by virtue of its knowledge of therecurring problems with the roof leaks elsewhere in the warehouse (see Armstrong v OgdenAllied Facility Mgt. Corp., 281 AD2d 317, 318 [2001]; Gutz v County of Monroe,221 AD2d 838, 839 [1995]; Columbo v James River, II, Inc., 197 AD2d at 761; seealso Mazerbo v Murphy, 52 AD3d at 1067; Pierre v New York City Tr. Auth., 18 AD3d 317, 318 [2005];cf. Santiago v Pyramid Crossgates Co., 243 AD2d 955, 956 [1997]). Thus, we find thatthe evidence of a known recurring and chronic leakage problem with the roof of the warehousewhich, although superficially addressed, was never adequately addressed so as to remedy theunderlying problem raises a triable issue of fact as to constructive notice (see Mazerbo vMurphy, 52 AD3d at 1067; Pierre v New York City Tr. Auth., 18 AD3d at 318; Gibson v Bally Total Fitness Corp., 1AD3d 477, 478 [2003]; Webb v Audi, 208 AD2d at 1123) and "whether defendant[] should have corrected the condition in the exercise of reasonable care" (Columbo v JamesRiver, II, Inc., 197 AD2d at 761).
Defendant also urges that summary judgment is warranted because plaintiff has notdemonstrated that the roof leak, rather than plaintiff's own conduct, was the cause of plaintiff'sfall. However, since this is not a case where "only one conclusion may be drawn from theestablished facts" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]), "the factthat other causes might exist for plaintiff's fall establishes a question of fact as to proximatecause which must be resolved by a trier of fact" (Gerfin v North Colonie Cent. School Dist., 41 AD3d 1085,1086-1087 [2007]; see Carson vDudley, 25 AD3d 983, 983 [2006]; Litts v Best Kingston Gen. Rental, 7 AD3d 949, 951 [2004]).Further, notwithstanding defendant's assertions to the contrary, "a plaintiff need not demonstrate'that the precise manner in which the accident happened, or the extent of injuries, wasforeseeable' to establish that the defendant's negligence was a substantial cause of his or herinjuries" (Kriz v Schum, 75 NY2d 25, 34-35 [1989], quoting Derdiarian v FelixContr. Corp., 51 NY2d at 315; see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562[1993]).
Mercure, J.P., Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, withcosts.