| Ross v Betty G. Reader Revocable Trust |
| 2011 NY Slip Op 05857 [86 AD3d 419] |
| July 7, 2011 |
| Appellate Division, First Department |
| Barbara Ross et al., Respondents, v Betty G. ReaderRevocable Trust, Respondent-Appellant, and Emigrant Business Credit Corporation,Appellant-Respondent, et al., Defendants. |
—[*1] Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for respondent-appellant. Leav & Steinberg, LLP, New York (Daniela F. Henriques of counsel), forrespondents.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered December 29, 2009,which, insofar as appealed from, denied defendants Betty G. Reader Revocable Trust's andEmigrant Business Credit Corporation's respective motions for summary judgment dismissingthe complaint and all cross claims against them, unanimously modified, on the law, to the extentof granting the motion of Betty G. Reader Revocable Trust, and otherwise affirmed, withoutcosts. The Clerk is directed to enter judgment accordingly.
Plaintiff Barbara Ross injured her wrist at approximately 5:30 p.m. when she slipped and fellin a greasy, black substance on the sidewalk in front of a branch of Emigrant Business CreditCorporation (Emigrant). Emigrant leased the premises from Betty G. Reader Revocable Trust(Reader), the owner of the property. Plaintiff brought this premises liability action against, interalia, Emigrant and Reader, alleging that defendants failed to maintain the sidewalk in areasonably safe condition.[FN*]
At her deposition, plaintiff testified that upon seeing that the bank was closed, she turned[*2]towards the curb, took several steps, slipped and fell to theground. She testified that the sidewalk was "filthy, and slippery, and greasy, and black."
An Emigrant customer service representative, who was employed at that branch on the dateof plaintiff's accident, was also deposed. She testified that she had seen garbage and "mush" inthe street in front of the bank at around 8:00 a.m. that morning, and almost slipped and fellherself in the "slimy" food debris as she stepped onto the curb. She testified that she had seen thesame sort of loose food and garbage on previous occasions on the adjacent sidewalk. Shetestified that she told another employee about it and also complained to her immediatesupervisor.
The Emigrant representative further testified that when she left work that day, approximatelyan hour and a half before plaintiff's fall, she saw similar food debris in the street. She testifiedthat she did not know whether Emigrant had any duty to maintain the sidewalk, and had neverseen an Emigrant employee maintaining, inspecting or cleaning the sidewalk.
A representative of Reader's managing agent testified at deposition that the written leasebetween Reader and Emigrant states that the tenant is responsible for removal of garbage and forsidewalk maintenance. The lease requires Emigrant to "keep clean and free from dirt [and]. . . rubbish, . . . and maintain . . . the [adjacent]sidewalks."
Emigrant moved for summary judgment dismissing the complaint and all cross claimsagainst it on the grounds that it did not create or have actual or constructive notice of thedangerous condition that caused plaintiff's injury. Reader moved for summary judgment on thesame grounds, and also that it was an out-of-possession owner. By decision and order datedDecember 21, 2009, the motion court denied both motions, finding that defendants failed tomake the requisite prima facie showing.
For the reasons set forth below, we find that the motion court properly denied summaryjudgment to Emigrant, but erred in denying summary judgment to Reader. An out-of-possessionlandlord is generally not liable for the condition of the demised premises unless the landlord hasa contractual obligation to maintain the premises, or right to reenter in order to inspect or repair,and the defective condition is "a significant structural or design defect that is contrary to aspecific statutory safety provision" (seeBabich v R.G.T. Rest. Corp., 75 AD3d 439, 440 [2010]). The lease between Reader andEmigrant imposes no contractual duty on Reader to clean the sidewalk, and, although Readerretained the right to reenter, grease on a sidewalk is not a significant structural or design defect.Accordingly, Reader is an out-of-possession landlord entitled to summary judgment as a matterof law.
Emigrant, however, failed to show that there are no triable issues of fact with regard towhether it had constructive notice of the dangerous condition. A defendant moving for summaryjudgment in a slip-and-fall action has the initial burden of showing that it neither created, nor hadactual or constructive notice of the dangerous condition that caused plaintiff's injury (Smith v Costco Wholesale Corp., 50AD3d 499, 500 [2008]). In this case, plaintiff does not allege that either Reader or Emigrantcreated the alleged dangerous condition, and record evidence establishes that neither defendanthad actual notice.
Constructive notice is generally found when the dangerous condition is visible and apparent,and exists for a sufficient period to afford a defendant an opportunity to discover and remedy thecondition (cf. Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Adefendant demonstrates lack of constructive notice by producing evidence of its maintenanceactivities on the day of the accident, and specifically that the dangerous condition did not exist[*3]when the area was last inspected or cleaned before plaintifffell (see Raghu v New York City Hous.Auth., 72 AD3d 480 [2010]; Vilomar v 490 E. 181st St. Hous. Dev. Fund Corp Corp., 50 AD3d469 [2008]).
Emigrant's failure to produce such evidence mandates that we deny summary judgment (see e.g. Aviles v 2333 1st Corp., 66AD3d 432 [2009], citing Moser vBP/CG Ctr. I, LLC, 56 AD3d 323 [2008]). Emigrant concedes that the customer servicerepresentative who testified on its behalf was "not familiar with the Bank's sidewalk maintenanceand did not offer any testimony concerning maintenance of the sidewalk prior to andcontemporaneous with the incident." Moreover, rather than supporting Emigrant, her testimonyalso raises a triable issue of fact as to whether Emigrant had constructive notice that thepurported greasy, black substance on the sidewalk that caused plaintiff's injury was a dangerousunremedied condition (see e.g. Bido v876-882 Realty, LLC, 41 AD3d 311 [2007]; Modzelewska v City of New York, 31 AD3d 314 [2006]; Irizarry v 15 Mosholu Four, LLC, 24AD3d 373 [2005]).
We have considered Emigrant's remaining arguments and find them unavailing.Concur—Friedman, J.P., Catterson, Renwick and Abdus-Salaam, JJ.
Footnote *: The remaining defendants,including Pizzeria Uno, the tenant adjacent to Emigrant, were granted summary judgmentdismissing the complaint against them by the same decision and order from which the instantappeal is taken. Plaintiff cross-appealed, but Pizzeria Uno subsequently settled with the plaintiffand she withdrew her cross appeal.