| Knapp v Golub Corp. |
| 2010 NY Slip Op 02904 [72 AD3d 1260] |
| April 8, 2010 |
| Appellate Division, Third Department |
| Steven A. Knapp, Respondent, v Golub Corporation,Appellant. |
—[*1] Waite & Associates, P.C., Guilderland (Stephen J. Waite of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Giardino, J.), entered January 9,2009 in Fulton County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action seeking damages for injuries he sustained when he slippedand fell while exiting a supermarket owned by defendant located in the City of Johnstown,Fulton County. On the date of the accident, the supermarket was undergoing renovations, and atemporary asphalt walkway was being used for all patrons to enter and exit it. The temporaryasphalt walkway was sectioned off from excavation work with a flexible orange mesh fence. Asplaintiff pushed his shopping cart out from the supermarket and onto the temporary asphaltwalkway, he moved to the very left, alongside the flexible orange mesh fence, to make way foranother patron to enter the supermarket. As he did so, plaintiff's foot slipped off the edge of thetemporary asphalt walkway, causing him to fall through the flexible orange mesh fence into anexcavation ditch and onto rebar, which was laid across the excavated ground. Following joinderof issue, defendant moved for summary judgment dismissing the complaint. Supreme Courtdenied the motion, concluding that triable issues of fact exist regarding whether the design andconstruction of the temporary asphalt walkway constituted a dangerous or defective condition.Defendant appeals, and we now affirm.
"Whenever the general public is invited into stores, office buildings and other places ofpublic assembly, the owner is charged with the duty of providing the public with a reasonably[*2]safe premises, including a safe means of ingress and egress"(Gallagher v St. Raymond's R. C. Church, 21 NY2d 554, 557 [1968]). "Most relevanthere, '[t]he scope of this duty is measured in terms of foreseeability' " (Perrelli v Orlow,273 AD2d 533, 534 [2000], quoting Pizzola v State of New York, 130 AD2d 796, 796[1987]). "[W]hether a dangerous or defective condition exists on the property of another so as tocreate liability depends on the peculiar facts and circumstances of each case and is generally aquestion of fact for the jury" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997][internal quotation marks and citations omitted]; see Maloid v New York State Elec. & GasCorp., 257 AD2d 712, 713 [1999]). Likewise, " '[w]hat accidents are reasonably foreseeable,and what preventive measure should reasonably be taken, are ordinarily questions of fact' "(Perrelli v Orlow, 273 AD2d at 534, quoting Diven v Village ofHastings-On-Hudson, 156 AD2d 538, 539 [1989]).
"For defendant[ ] to prevail on [its] summary judgment motion, [it is] 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" (Cantwell vRondout Sav. Bank, 55 AD3d 1031, 1031-1032 [2008] [internal quotation marks andcitations omitted]). " 'Constructive notice requires a showing that the condition was visible andapparent and existed for a sufficient period of time prior to the accident to permit [a] defendant[ ]to discover it and take corrective action' " (Hagin v Sears, Roebuck & Co., 61 AD3d 1264, 1266 [2009],quoting Boyko v Limowski, 223 AD2d 962, 964 [1996]; see Cantwell v RondoutSav. Bank, 55 AD3d at 1031-1032).
To establish the lack of constructive notice, defendant offered the testimony from storeemployees that the temporary walkway was checked both minutes before and just after theaccident, and no gravel, stones or debris was found in the area of the temporary walkway whereplaintiff fell. Defendant also pointed to plaintiff's deposition testimony, wherein plaintiff statedthat he did not recall seeing stones or pebbles on the temporary walkway before or after theaccident. Defendant submitted that plaintiff's theory of the accident—that he slipped onstones or gravel—is speculative, and also established that the presence of the flexibleorange mesh fence was not a proximate cause of the accident. In opposition to defendant'smotion, plaintiff argued that his fall was not caused by the presence of a foreign substance on thetemporary walkway, but by reason of defendant's failure to erect a sufficient barrier between theedge of the temporary walkway and the ditch below to prevent plaintiff and other patrons usingthe walkway from falling through the flexible orange mesh fence into the excavated area underconstruction. Thus, plaintiff argued, defendant created the defect and, by the testimony of itsown employees, had notice of a dangerous condition.
Even if defendant met its prima facie burden, viewing the proof presented in the light mostfavorable to plaintiff (see Candelario vWatervliet Hous. Auth., 46 AD3d 1073, 1074 [2007]), we find questions of fact exist asto whether defendant maintained the premises in a reasonably safe condition and as to whether itcreated or had actual or constructive notice of the allegedly dangerous condition. Whiledefendant claims no notice of debris on the temporary walkway, a jury could reasonablyconclude that a substantial cause of plaintiff's injuries was defendant's failure to provide a moresturdy barrier between the temporary walkway and the excavation area (see generally Carson v Dudley, 25AD3d 983, 983-984 [2006]).
We also note that Supreme Court did not misconstrue plaintiff's deposition testimony, whichis simply unclear as to whether plaintiff slipped on loose stones before or after his foot slid [*3]off the side of the temporary walkway. In addition, even if we wereto conclude that plaintiff's expert affidavit submitted in opposition to defendant's motion wasinsufficient, as claimed by defendant, questions of fact still preclude summary judgment indefendant's favor. Accordingly, Supreme Court properly denied defendant's motion for summaryjudgment dismissing the complaint.
Spain, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.