| Pommerenck v Nason |
| 2010 NY Slip Op 09697 [79 AD3d 1716] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Brigid Pommerenck, as Administratrix of the Estate of EricPommerenck, Deceased, Respondent, v Gerald R. Nason, Jr., Defendant, and Gerald R. Nason,Sr., et al., Appellants. |
—[*1] Law Offices of Eugene C. Tenney, Buffalo (Courtney G. Scime of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredFebruary 16, 2010 in a wrongful death action. The order denied the motion of defendants GeraldR. Nason, Sr. and Rosemary Nason for summary judgment dismissing plaintiff's complaintagainst them.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the complaint against defendants Gerald R. Nason, Sr.and Rosemary Nason is dismissed.
Memorandum: Plaintiff commenced this wrongful death action, as administratrix of theestate of her husband (decedent), seeking damages for the fatal injuries decedent sustained whena hay elevator collapsed on him. Gerald R. Nason, Sr. and Rosemary Nason (collectively,defendants) owned but did not reside on the property where the accident occurred (property).Their son, defendant Gerald R. Nason, Jr., used the property on occasion to store junk equipment,including the hay elevator. Decedent and a friend went to the property to inspect the hay elevatorwith the intent of purchasing it.
We agree with defendants that Supreme Court erred in denying their motion for summaryjudgment dismissing the complaint against them. It is well established that "[a] landowner isliable for a dangerous or defective condition on his or her property when the landowner 'createdthe condition or had actual or constructive notice of it and a reasonable time within which toremedy it' " (Anderson v Weinberg,70 AD3d 1438, 1439 [2010]). Here, defendants met their initial burden of establishing thatthey did not create the allegedly defective condition on the property and that they did not haveactual notice of it, and plaintiffs failed to raise a triable issue of fact in opposition (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Gerald Nason, Sr.testified at his deposition that the property consists of approximately 38 to 40 acres of largelyundeveloped farmland, which he uses in the summer [*2]monthsto grow hay for his dairy farm. Prior to the accident in December 2005, Gerald Nason, Sr. lastvisited the property in September 2005 when he finished baling hay for the season. In addition,Rosemary Nason testified that she never visited the property and that she had nothing to do withthe property apart from her ownership thereof.
We further conclude that defendants met their initial burden of establishing that they did nothave constructive notice of the allegedly defective condition, and plaintiff failed to raise a triableissue of fact in opposition (see PuengFung v 20 W. 37th St. Owners, LLC, 74 AD3d 635 [2010]; see generallyZuckerman, 49 NY2d at 562). Although defendants submitted evidence establishing that thehay elevator had been located on the property for at least 2½ months and that they mayhave driven by the property "four or five times" during that period, there was no evidence that thehay elevator was visible from the road. In any event, even assuming, arguendo, that defendantswere aware of the existence of the hay elevator on the property, we conclude that such awarenessdoes not establish that they had constructive notice of any alleged defect in the hay elevator (see Moore v Ortolano, 78 AD3d1652 [2010]). Indeed, Gerald Nason, Jr. testified at his deposition that the condition of thehay elevator could not be observed without coming onto the property.
Nevertheless, "landowner[s] may be under an affirmative duty to conduct reasonableinspections of the premises, despite the general notion that notice is a prerequisite to recovery forinjuries caused by a dangerous condition" (3 Warren's Negligence in New York Courts §56.02, at 56-10 [2d ed]; see Hayes vRiverbend Hous. Co., Inc., 40 AD3d 500, 501 [2007]; Weller v Colleges of theSenecas, 217 AD2d 280, 285 [1995]). The duty of landowners to inspect their property ismeasured by a standard of reasonableness under the circumstances (see Hayes, 40 AD3dat 501; Weller, 217 AD2d at 285; see generally Basso v Miller, 40 NY2d 233,241 [1976]). Under the unique circumstances of this case, we conclude that defendants' allegedawareness of the existence of the hay elevator on the property did not trigger a duty to enter theproperty and conduct an inspection of the hay elevator (see generally Singh v United Cerebral Palsy of N.Y. City, Inc., 72AD3d 272, 276 [2010]). "Where . . . there is nothing to arouse the[landowners'] suspicion, [they have] no duty to inspect" (Appleby v Webb, 186 AD2d1078, 1079 [1992]; see Scoppettone vADJ Holding Corp., 41 AD3d 693, 695 [2007]). Here, there was nothing unlawful orunusual about the presence of a piece of farm equipment on a large parcel of farmland, nor wasthere anything about the mere presence of a hay elevator that should have aroused defendants'suspicions that the hay elevator was defective (see Scoppettone, 41 AD3d at 695).Further, there is no evidence of any prior complaints, incidents or accidents involving the hayelevator.
We therefore reverse the order, grant the motion and dismiss the complaint againstdefendants. Present—Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.