| Nelson v Cunningham Assoc., L.P. |
| 2010 NY Slip Op 07153 [77 AD3d 638] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Barbara Nelson, Respondent, v Cunningham Associates, L.P.,Appellant. |
—[*1] Falk & Klebanoff, P.C., West Hempstead, N.Y. (Jeffrey P. Falk and Victor A. Carr of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of theSupreme Court, Queens County (McDonald, J.), entered October 28, 2009, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summaryjudgment dismissing the complaint is granted.
On September 3, 2006, the plaintiff, while visiting her friend's apartment, was injured when one ofthe kitchen cabinet doors came off its hinges as she was attempting to open it to put cups away whilecleaning up after dinner. The plaintiff's friend (hereinafter the tenant) rented the apartment from thedefendant, which owned and operated the building in which the apartment was located.
The plaintiff commenced this action against the defendant, alleging negligence. The defendantmoved for summary judgment dismissing the complaint. The Supreme Court denied the defendant'smotion. We reverse.
An out-of-possession landlord that has assumed the obligation to make repairs to its propertycannot be held liable for injuries caused by a defective condition at the property unless it either createdthe condition or had actual or constructive notice of it (see Gordon v American Museum of NaturalHistory, 67 NY2d 836 [1986]; Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634, 636[2010]; Hayden v Waldbaum, Inc., 63AD3d 679 [2009]; Denker v Century21 Dept. Stores, LLC, 55 AD3d 527 [2008]; Patrick v Bally's Total Fitness, 292AD2d 433 [2002]).
In the case at bar, the plaintiff did not assert that the defendant created the allegedly defectivecondition. With respect to notice, the defendant established that it did not have either actual orconstructive notice of the allegedly defective condition which harmed the plaintiff. To prove constructivenotice of a defective condition, a plaintiff must establish that the defect existed for a sufficient amount oftime to allow the defendant to discover and remedy it (see Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005]; [*2]Gordon v American Museum of Natural History, 67 NY2d at 837;Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798, 799 [2003]; Patrick vBally's Total Fitness, 292 AD2d at 434). On its motion for summary judgment, the defendant borethe initial burden of demonstrating that it did not receive any prior complaints concerning the allegeddangerous condition (see Sowa v S.J.N.H.Realty Corp., 21 AD3d 893, 895 [2005]; Patrick v Bally's Total Fitness, 292 AD2dat 434).
Here, the defendant's maintenance director testified at his deposition that no complaints were everreceived about the subject kitchen cabinet door, which he confirmed by searching the defendant's workorders pertaining to the apartment, and finding none relating to complaints about the kitchen cabinetdoor. In addition, during discovery, the defendant produced an apartment inspection report, datedJanuary 11, 2006, pertaining to a lease renewal inspection which was conducted approximately eightmonths before the accident. According to that report, neither the defendant's employee who performedthe inspection nor the tenant indicated that there were any problems with the kitchen cabinet doors, andboth signed off on the inspection report. The defendant's maintenance director testified that the leaserenewal inspection would have entailed a check of the kitchen cabinets to ensure that they were inproper working order. The defendant also submitted a copy of the plaintiff's deposition testimony, inwhich she testified that, despite having been to the apartment on approximately 50 occasions prior tothe day of the accident, she had never had any problems with the subject kitchen cabinet door, orobserved loose hinges. Similarly, she testified that the tenant never advised her that he had any suchproblems with the kitchen cabinet doors. Accordingly, the defendant established that it had no notice ofany defective condition concerning the kitchen cabinet door (see Sowa v S.J.N.H. RealtyCorp., 21 AD3d at 895; Joseph vHemlok Realty Corp., 6 AD3d 392, 393 [2004]).
Contrary to the Supreme Court's determination, the plaintiff failed to raise a triable issue of fact asto whether the defendant had either actual or constructive notice of the allegedly defective condition(see Sowa v S.J.N.H. Realty Corp., 21 AD3d at 895; Patrick v Bally's Total Fitness,292 AD2d at 434). The plaintiff merely speculated that the defendant's employee who performed thelease renewal inspection might not have done an adequate inspection, and failed to inspect the kitchencabinet doors, despite the testimony of the defendant's maintenance director to the contrary. Suchspeculation and surmise were insufficient to defeat the defendant's motion for summary judgment (see Pesantes v Komatsu Forklift USA, Inc.,58 AD3d 823, 824 [2009]; Skouras vNew York City Tr. Auth., 48 AD3d 547 [2008]). Moreover, contrary to the plaintiff'scontention, the deposition testimony of the defendant's maintenance director was insufficient to raise atriable issue of fact as to whether the allegedly defective condition had existed for a sufficient period oftime to impute notice to the defendant. Accordingly, the Supreme Court should have granted thedefendant's motion for summary judgment dismissing the complaint. Rivera, J.P., Dickerson, Eng andAustin, JJ., concur.