| Abrams v Berelson |
| 2012 NY Slip Op 02618 [94 AD3d 782] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Jay Abrams et al., Respondents, v Suzanne Berelson,Appellant. |
—[*1] Michael Ian Black, New York, N.Y. (Jeffrey I. Klein of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby her brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.),dated August 23, 2010, as granted the plaintiffs' motion, denominated as one pursuant to CPLR5015 (a) (2) to vacate an order of the same court (Ponterio, J.), dated August 30, 2000, grantingher motion for summary judgment dismissing the complaint, but which was, in actuality, amotion pursuant to CPLR 2221 for leave to renew the plaintiffs' opposition to her motion forsummary judgment dismissing the complaint, and, upon renewal, in effect, vacated the orderdated August 30, 2000, and thereupon, denied her motion for summary judgment dismissing thecomplaint.
Ordered that the order dated August 23, 2010, is reversed insofar as appealed from, on thefacts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 2221 isdenied, and the order dated August 30, 2000, is reinstated.
The defendant hired the plaintiff Jay Abrams (hereinafter the injured plaintiff) and hiscoworker, Michael Torres, through their employer, to clean the carpets of a house that she ownedand that, until her mother's death two months earlier, had been occupied exclusively by hermother. According to the plaintiffs, the defendant instructed the injured plaintiff and Torres thatany remaining property in the house could be kept by them, discarded as trash, or donated tocharity. The plaintiffs alleged that, in the course of performing the work, Torres discovered aloaded rifle in one of the closets he was cleaning, and accidentally shot the injured plaintiff.
The injured plaintiff and his wife, suing derivatively, commenced the instant action againstthe defendant. The defendant then moved for summary judgment dismissing the complaint and,in support of her motion, submitted an affidavit in which she averred that she was not aware thatthere was a rifle in the house. At the time that the defendant's summary judgment motion wasmade, the plaintiffs were unable to locate Torres and, thus, could not obtain an affidavit fromhim regarding the circumstances surrounding the accident and his discovery of the gun. In anorder dated August 30, 2000, the Supreme Court granted the motion, concluding that thedefendant had met her prima facie burden and that the plaintiffs failed to raise a triable issue offact as to actual or constructive [*2]notice. This Court affirmedthe order (see Abrams v Berelson, 283 AD2d 597 [2001]).
More than nine years later, the plaintiffs moved, pursuant to CPLR 5015 (a) (2), to vacate theorder on the ground of newly-discovered evidence, which motion was properly treated by theSupreme Court as one pursuant to CPLR 2221 for leave to renew the plaintiffs' opposition to thedefendant's motion for summary judgment dismissing the complaint. In support of the motion torenew, the plaintiffs submitted, among other things, an affidavit from Torres. Torres averred that,in the course of his work at the defendant's house, he saw a box leaning against the back wall of acloset, labeled "Daisy air rifle b.b. gun," and that it was "impossible" for a person looking in thecloset to fail to see the box. Torres averred that "[i]n the box, and, in plain sight, was a rifle."Notably, although Torres's affidavit was originally written to indicate that the rifle was foundoutside the box and leaning against it, Torres inserted handwritten changes to the affidavit toclarify that the gun was inside the box. On the basis, inter alia, of this new evidence, the SupremeCourt granted the plaintiffs' motion to renew their opposition to the defendant's summaryjudgment motion, vacated its prior order, and denied the defendant's motion.
The Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion.A motion for leave to renew "shall be based upon new facts not offered on the prior motion thatwould change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Matter of Choy v Mai Ling Lai, 91AD3d 772 [2012]; Barnett vSmith, 64 AD3d 669, 670 [2009]). Under the circumstances of this case, the plaintiffs'submissions were insufficient to demonstrate a reasonable justification for failing to present thenew evidence on the prior motion (see CPLR 2221 [e] [3]; Mount Sinai Hosp. v Country Wide Ins.Co., 85 AD3d 1136 [2011]; Lardo v Rivlab Transp. Corp., 46 AD3d 759, 759-760 [2007]).Many of the efforts made by the plaintiffs and other individuals to locate Torres, which are reliedupon by the dissent, occurred after the defendant's motion for summary judgment was decided,and, therefore, do not constitute reasonable justification for their failure to present Torres'affidavit "on the prior motion" (CPLR 2221 [e] [3]). Moreover, the plaintiffs, who did not moveto vacate the judgment until six months after locating Torres, failed to meet their "heavy burden"of showing due diligence in presenting the new evidence to the Supreme Court once it wasobtained (Andrews v New York CityHous. Auth., 90 AD3d 962, 963 [2011]; see Cannistra v Gibbons, 224 AD2d570, 572 [1996]; Ramsco, Inc. v Riozzi, 210 AD2d 592, 593 [1994]; Levitt v Countyof Suffolk, 166 AD2d 421, 422-423 [1990] [plaintiff failed to proffer a sufficient explanationfor the six-month delay in seeking to vacate the prior judgment]).
In any event, even if the plaintiffs had demonstrated the requisite reasonable justification,denial of the motion would have been warranted because the allegedly new facts offered wouldnot have changed the prior determination (see CPLR 2221 [e] [2]; Matter of Choy v Mai Ling Lai, 91AD3d 772 [2012]). "A defendant who moves for summary judgment in a premises liabilitycase has the initial burden of making a prima facie showing that it neither created the hazardouscondition nor had actual or constructive notice of its existence for a sufficient length of time todiscover and remedy it" (Bloomfield vJericho Union Free School Dist., 80 AD3d 637, 638 [2011]; see Aguirre v Paul, 54 AD3d 302[2008]; Lezama v 34-15 Parsons Blvd,LLC, 16 AD3d 560 [2005]). This Court concluded on the prior appeal that the defendantmet her prima facie burden of demonstrating that she did not create the dangerous condition, anddid not have actual or constructive notice of the presence of the rifle in the closet (see Abramsv Berelson, 283 AD2d at 598). Torres' affidavit would not have changed the result of thesummary judgment motion because, contrary to the plaintiffs' contention, it did not raise a triableissue of fact as to the defendant's constructive notice of a dangerous condition.
A defendant has constructive notice of a dangerous condition when the condition "is visibleand apparent, and has existed for a sufficient length of time before the accident that it could havebeen discovered and corrected" (Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629, 629[2009]; see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Larsen v Congregation B'Nai Jeshurun ofStaten Is., 29 AD3d 643 [2006]). Although the presence of a loaded gun mayconstitute a dangerous condition, under the circumstances of this case, the mere presence of agun in the defendant's house was not sufficient to establish, as a matter of law, the defendant'sliability founded on the presence of a dangerous condition, absent proof that the defendant hadactual or constructive [*3]knowledge that the gun was loaded(see Yusko v Remizon, 280 App Div 637, 639 [1952]; Napiearlski v Pickering,278 App Div 456, 457-458 [1951]). Thus, to establish the defendant's liability, the plaintiffsultimately would be required to show not only that the defendant had constructive notice of thepresence of the rifle, but constructive notice that the rifle was loaded (see Yusko vRemizon, 280 App Div at 639; see also Napiearlski v Pickering, 278 App Div at457-458).
The plaintiff failed to raise a triable issue of fact in that regard. Torres' affidavit merelyestablished that there was a box in the closet labeled "Daisy air rifle B.B. gun," which containeda .22 caliber rifle, and that one could not look into the closet without noticing the box. Even ifTorres's affidavit, along with the defendant's deposition testimony that, when she was a child, herfather owned a gun which she knew about, was sufficient to establish a triable issue of fact as tothe defendant's constructive notice that the box contained a rifle, there was no evidence that thedefendant knew or had any reason to know that the rifle in the box was loaded (see Yusko vRemizon, 280 App Div at 639; cf. Gill v Falkowski, 69 AD2d 934, 935 [1979]).Further, under the circumstances of this case, involving the injured plaintiff and Torres, adultswho were no less able to assess and appreciate the danger of a weapon than the defendant, andthe need to treat a weapon with the utmost of care, we decline to impose upon the defendant aduty to personally inspect the contents of the box to assess whether any weapon contained thereinwas loaded so that she could so warn the injured plaintiff and his co-worker (see Yusko vRemizon, 280 App Div at 639).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination.
Accordingly, the plaintiffs' motion pursuant to CPLR 2221 should have been denied. Skelos,J.P., Lott and Miller, JJ., concur.
Dickerson, J., dissents, and votes to affirm the order insofar as appealed from, with thefollowing memorandum in which Leventhal, J., concurs: The defendant's parents owned a houseon Staten Island for many years. The defendant lived with her parents in the premises fromapproximately 1962 through 1977. The defendant's father died in 1980. The defendant's mothercontinued to reside in the premises. In 1993, title to the house was conveyed to the defendant,subject to a life estate held by her mother. The defendant's mother died in September 1997.
Following her mother's death, the defendant hired All Boro Carpet Cleaning (hereinafter AllBoro) to clean the carpets in the house in order to prepare the house to be rented. The plaintiffJay Abrams (hereinafter the injured plaintiff) and his coworker Michael Torres worked for AllBoro. On November 3, 1997, the injured plaintiff and Torres went to the defendant's house toperform cleaning work. According to the plaintiffs, the defendant instructed the injured plaintiffand Torres to move the personal property within the house to the kitchen so the carpets could becleaned. She further instructed the injured plaintiff that, if he came across any items that hewanted, he should bring them to her attention, and she would let him know whether he couldkeep them.
The injured plaintiff and Torres began cleaning out the house, working in separate rooms.According to the plaintiffs, Torres came across a rifle in a closet, and when he picked up the rifle,it discharged. The bullet struck the injured plaintiff in the jaw, severely injuring him.
Torres was initially arrested, but he was released and the charges were dropped when theinjured plaintiff confirmed that the shooting was accidental. However, after his release, Torrescould not be located.
The injured plaintiff and his wife, suing derivatively, commenced this action against thedefendant as homeowner. The defendant moved for summary judgment dismissing thecomplaint, contending, inter alia, that there was no evidence that she had actual or constructive[*4]notice of the presence of the rifle in the house, or that it wasloaded. In an order dated August 30, 2000, the Supreme Court granted the defendant's motion.The Supreme Court found that the plaintiffs could not establish a prima facie case as to notice,largely because Torres could not be produced to testify concerning where the rifle was discoveredand whether it was visible and apparent. Additionally, the plaintiffs could offer no evidence as tohow long the rifle had been present in the house prior to the shooting. This Court affirmed theorder granting the defendant summary judgment dismissing the complaint, concluding that "[t]hedefendant established that she did not have actual or constructive notice of the presence of therifle in the closet. In response, the plaintiffs only speculated that the defendant had notice of therifle" (Abrams v Berelson, 283 AD2d 597, 598 [2001]).
In 2010, by order to show cause, the plaintiffs moved pursuant to CPLR 5015 (a) (2) tovacate the order granting the defendant summary judgment dismissing the complaint based onnewly-discovered evidence. Specifically, the plaintiffs stated that they had finally managed tolocate Torres and had obtained an affidavit from him. Additionally, contrary to earlier indicationsfrom the New York City Police Department that the rifle had been destroyed, the plaintiffsdiscovered that the rifle was, in fact, still in police possession. The defendant opposed themotion, arguing, among other things, that the plaintiffs failed to demonstrate that they hadexercised due diligence in attempting to obtain this evidence when her motion for summaryjudgment was pending before the Supreme Court. Furthermore, the defendant asserted that, evenif the affidavit obtained by the plaintiffs from Torres had been before the Supreme Court on theoriginal motion, its contents would have been insufficient to defeat her summary judgmentmotion.
The Supreme Court properly treated the plaintiffs' motion as one for leave to renew pursuantto CPLR 2221 (e). That court granted the plaintiffs' motion, determining that the plaintiffsestablished a reasonable justification for their failure to present the new facts which were notoriginally offered in opposition to the defendant's summary judgment motion, and that the newfacts would have changed the determination on that motion. I agree with the Supreme Court'sdetermination, and, accordingly, I respectfully dissent.
"Pursuant to CPLR 2221 (e), a motion for leave to renew 'shall be based upon new facts notoffered on the prior motion that would change the prior determination . . . and. . . shall contain reasonable justification for the failure to present such facts on theprior motion' " (Andrews v New YorkCity Hous. Auth., 90 AD3d 962, 963 [2011], quoting CPLR 2221 [e] [2], [3]). "[O]n [a]postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence inpresenting the new evidence to the Supreme Court in order to imbue the appellate decision with adegree of certainty" (Andrews v New York City Hous. Auth., 90 AD3d at 963 [internalquotation marks omitted]; see Estate ofEssig v 5670 58 St. Holding Corp., 66 AD3d 822, 823 [2009]; Levitt v County ofSuffolk, 166 AD2d 421, 423 [1990]). " 'A motion for leave to renew is addressed to thesound discretion of the court' " (Hamletat Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 100 [2009],quoting Matheus v Weiss, 20 AD3d454, 454-455 [2005]; see Lardo vRivlab Transp. Corp., 46 AD3d 759, 759 [2007]; Mi Ja Lee v Glicksman, 14 AD3d 669, 670 [2005]).
Torres's availability and testimony constituted new facts not offered on the prior motionwithin the meaning of CPLR 2221 (e) (2). After essentially disappearing for 12 years followingthe incident, Torres, whose testimony the plaintiffs and the Supreme Court deemed crucial to thecase, resurfaced in 2009, and the plaintiffs made their motion within approximately six months.Under these circumstances, six months did not constitute an unreasonable delay such that thisevidence could not be deemed to be "new facts" within the meaning of CPLR 2221 (e) (2) at thetime the motion was made.
Contrary to the plaintiffs' contentions, under the circumstances of this case, I conclude thatthe other evidence on which their motion was premised, specifically the discovery that the riflehad not been destroyed and was available, and the testimony of several other witnesses, did notconstitute "new facts" within the meaning of CPLR 2221 (e) (2).
With regard to whether the plaintiffs demonstrated a reasonable justification for their [*5]failure to present Torres's testimony in opposition to the defendant'smotion in 2000, "[w]hat constitutes a 'reasonable justification' is within the Supreme Court'sdiscretion" (Dervisevic vDervisevic, 89 AD3d 785, 787 [2011]; see Rowe v NYCPD, 85 AD3d 1001, 1003 [2011]). Here, it isundisputed that Torres deliberately went into hiding for years following the shooting, and that theplaintiffs could not locate him. The plaintiffs proffer evidence concerning some of theunsuccessful efforts undertaken to locate Torres, including the personal efforts of the injuredplaintiff's wife, the efforts of the plaintiffs' prior attorney, and the affidavit of a mutual friendwho attempted to locate Torres for the plaintiffs. The plaintiffs also rely on Torres's affidavit, inwhich he acknowledges going into hiding and describes some of the steps he took to conceal hiswhereabouts. Cumulatively, this evidence was sufficient to demonstrate that the plaintiffsexercised due diligence in attempting to locate Torres, but to no avail. The defendant'sprotestations that the plaintiffs failed to adequately demonstrate that Torres's availability couldnot be secured through the exercise of due diligence are without merit and belied by the record.Under the circumstances of this case, and based on the applicable standard, the plaintiffs werenot required to produce an even more detailed account of their efforts over the years to discoverTorres's whereabouts. Accordingly, I conclude that the Supreme Court providently exercised itsdiscretion in concluding that the plaintiffs established a reasonable justification for their failureto present Torres's affidavit in opposition to the defendant's motion for summary judgmentdismissing the complaint in 2000.
Thus, the remaining question is whether the proffered evidence "would change the priordetermination" (CPLR 2221 [e] [2]) granting the defendant's motion for summary judgmentdismissing the complaint.
"A party moving for summary judgment must make a prima facie showing of entitlement tojudgment as a matter of law, offering sufficient evidence to demonstrate the absence of anymaterial issues of fact" (Napolitano vSuffolk County Dept. of Pub. Works, 65 AD3d 676, 677 [2009]; see Alvarez vProspect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557[1980]). "The failure to make such a prima facia showing requires the denial of the motionregardless of the sufficiency of the opposing papers" (Napolitano v Suffolk County Dept. ofPub. Works, 65 AD3d at 677; see Winegrad v New York Univ. Med. Ctr., 64 NY2d851 [1985]). If the movant succeeds in making a prima facie showing, the burden then shifts tothe nonmoving party to come forward with sufficient evidence to raise a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d at 324; Yax v Development Team, Inc., 67 AD3d 1003, 1004 [2009]). Indetermining a motion for summary judgment, the evidence must be viewed in the light mostfavorable to the nonmoving party (seePearson v Dix McBride, LLC, 63 AD3d 895, 895 [2009]).
Thus, to establish that the newly-discovered evidence "would change the priordetermination" (CPLR 2221 [e] [2]), we must only conclude that the new facts would have beensufficient to raise a triable issue of fact in opposition to the defendant's motion.
" 'A property owner has a duty to maintain [its] property in a reasonably safe condition' " (Surujnaraine v Valley Stream Cent. HighSchool Dist., 88 AD3d 866, 866 [2011], quoting Katz v Westchester County Healthcare Corp., 82 AD3d 712, 713[2011]). " 'However, a property owner has no duty to protect or warn against an open andobvious condition, which as a matter of law is not inherently dangerous' " (Surujnaraine vValley Stream Cent. High School Dist., 88 AD3d at 866, quoting Katz v WestchesterCounty Healthcare Corp., 82 AD3d at 713; see Neiderbach v 7-Eleven, Inc., 56 AD3d 632, 633 [2008]; Giambruno v Wilbur F. Breslin Dev.Corp., 56 AD3d 520, 521 [2008]; Cupo v Karfunkel, 1 AD3d 48, 51 [2003]).
"A defendant who moves for summary judgment in a premises liability case has the initialburden of making a prima facie showing that it neither created the hazardous condition nor hadactual or constructive notice of its existence for a sufficient length of time to discover andremedy it" (Bloomfield v Jericho UnionFree School Dist., 80 AD3d 637, 638 [2011]; see Aguirre v Paul, 54 AD3d 302, 303 [2008]; Lezama v 34-15 Parsons Blvd, LLC, 16AD3d 560, 560 [2005]). Thus, to prevail on her motion, the defendant had to eliminate alltriable issues of fact as to whether the loaded .22 caliber rifle, under the circumstances presentedhere, constituted a dangerous condition, and whether she created or had actual or constructivenotice thereof. Before considering whether the defendant [*6]created or had actual or constructive notice of a hazardous ordangerous condition on her premises, it must be determined whether a hazardous or dangerouscondition in fact existed.
" '[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' " (Surujnaraine v Valley Stream Cent. High School Dist., 88AD3d at 867, quoting Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).
The majority, relying on an Appellate Division, Third Department, case decided in 1952(see Yusko v Remizon, 280 App Div 637 [1952]), and an Appellate Division, FourthDepartment, case decided in 1951 (see Napiearlski v Pickering, 278 App Div 456[1951]), concludes that, under the circumstances presented here, the mere presence of a gun inthe defendant's house did not constitute negligence. I do not necessarily disagree with thestatement that "[t]he mere presence of a gun in one's house is not negligence" (Yusko vRemizon, 280 App Div at 639), as a general, and limited, proposition. I depart from mycolleagues in the majority, however, in concluding that, here, because of the manner in which theloaded rifle was stored, and based on the instructions offered to the injured plaintiff and Torresby the defendant, under the " 'peculiar facts and circumstances of [this] case' " (Surujnaraine vValley Stream Cent. High School Dist., 88 AD3d at 867, quoting Trincere v County ofSuffolk, 90 NY2d at 977), the loaded rifle constituted a hazardous condition.
Torres's affidavit states that he and the injured plaintiff were working in separate rooms atthe defendant's house. The defendant had informed the injured plaintiff that she had "gonethrough the house and removed everything she wanted." She had informed Torres and the injuredplaintiff that they "could take anything that remained, but that [they] should notify her about it if[they] did so." Torres and the injured plaintiff were in the process of moving everything from thehouse into the kitchen so that they could clean the carpets. Torres discovered a box leaningagainst the back wall of a closet. The box was labeled "Daisy air rifle b.b. gun." "In the box andin pla[i]n sight," was a .22 caliber rifle. However, Torres "thought it was the b.b. gun." As themajority notes, it appears that Torres amended his typewritten affidavit such that, instead ofindicating that the rifle was "[o]utside the box and leaning against it," the affidavit states that therifle was "[i]n the box and in pla[i]n sight." Torres stated that it would be impossible for anyonewho looked into the closet to fail to see the rifle. Torres speculated that whoever had removedclothing from the closet "had clearly left the box and the gun intentionally." Torres picked up therifle, "because it clearly could not be left where it was when the house was being cleaned out fora sale." Torres further stated in his deposition that when he picked up the rifle, it discharged.There can be no dispute that the rifle was, in fact, loaded.
Viewing the evidence in the light most favorable to the nonmoving plaintiffs (see Pearsonv Dix McBride, LLC, 63 AD3d at 895), I conclude, based on the peculiar facts andcircumstances of this case (see Trincere v County of Suffolk, 90 NY2d at 977;Surujnaraine v Valley Stream Cent. High School Dist., 88 AD3d at 867), that the loadedrifle, out in the open and in plain sight, misleadingly left in a BB gun box, could constitute adangerous condition sufficient to support liability against the defendant homeowner. This isparticularly so in light of the defendant's invitation to the injured plaintiff and Torres to sortthrough all items in the house, and select among those items any they would like to keep. Indeed,in light of the fact that the rifle was misleadingly stored in or on a BB gun box, this conditioncould be deemed a "trap for the unwary," inasmuch as the true nature of the condition wasobscured by the manner in which it presented itself (Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761, 761 [2011]; see Mazzarelli v 54 Plus Realty Corp.,54 AD3d 1008, 1009 [2008]). Contrary to the defendant's contention, this case doesessentially appear to "involve a rifle left out in the open, loaded and cocked."
Turning to whether the defendant created or had actual or constructive notice of thehazardous condition, the plaintiffs did not allege, and there was no evidence to support thetheory, that the defendant created the hazardous condition. The defendant also denied havingactual notice thereof, and the plaintiffs, both in opposition to the original motion and on thepresent motion, presented no evidence to raise a triable issue of fact relevant to actual notice.Accordingly, Torres's affidavit must be examined to determine whether it "would change theprior determination" (CPLR [*7]2221 [e] [2]) on the defendant'smotion by raising a triable issue of fact relevant to the issue of constructive notice.
" 'A defendant has constructive notice of a defect when the defect is visible and apparent, andhas existed for a sufficient length of time before the accident that it could have been discoveredand corrected' " (Leary v Leisure GlenHome Owners Assn., Inc., 82 AD3d 1169, 1170 [2011], quoting Dennehy-Murphy v Nor-Topia Serv. Ctr.,Inc., 61 AD3d 629, 629 [2009]; see Gordon v American Museum of NaturalHistory, 67 NY2d 836 [1986]). " 'There must be some proof that the potential dangerreasonably could have been neutralized and that its existence was or should have been discoveredby the [landowner]' " (Abrams v Berelson, 283 AD2d at 598, quoting Preston v Stateof New York, 59 NY2d 997, 999 [1983]).
Again, Torres stated in his affidavit that the defendant had informed the injured plaintiff thatshe had "gone through the house and removed everything she wanted." Torres further stated inhis affidavit that it would be impossible for anyone who looked into the closet to fail to see therifle. He speculated that whoever had removed clothing from the closet "had clearly left the boxand the gun intentionally." In addition to these new facts, in her deposition testimony which wasbefore the Supreme Court on her original motion, the defendant testified that, following hermother's death, she had sorted through several closets in the house and packed her mother'spossessions. Further, the defendant stated in her affidavit in support of her motion for summaryjudgment that, "[w]hen [the injured] Plaintiff was in the house cleaning the carpets, I was still inthe process of cleaning out the house and 'going through' the items contained therein."
This evidence is undeniably relevant to whether the loaded rifle was "visible and apparent"(see Gordon v American Museum of Natural History, 67 NY2d at 837; Leary vLeisure Glen Home Owners Assn., Inc., 82 AD3d at 1170; Dennehy-Murphy vNor-Topia Serv. Ctr., Inc., 61 AD3d at 629). Again, Torres stated that "[i]n the box and inpla[i]n sight, was a rifle." Furthermore, I conclude that, viewing the evidence in the light mostfavorable to the nonmoving plaintiffs (see Pearson v Dix McBride, LLC, 63 AD3d at895), Torres's affidavit concerning the manner in which he found the rifle and the condition inwhich he found it, especially coupled with the defendant's own statements concerning heractivities in going through the house after her mother's death and packing up her mother'spossessions, was sufficient to raise a triable issue of fact as to whether this dangerous condition "'ha[d] existed for a sufficient length of time before the accident that it could have beendiscovered and corrected' " (Leary v Leisure Glen Home Owners Assn., Inc., 82 AD3d at1170, quoting Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d at 629; seeGordon v American Museum of Natural History, 67 NY2d at 837).
I do not agree with the majority that, under the particular and unique circumstances of thiscase, the plaintiffs were required to prove that the defendant had actual or constructive notice ofthe fact that the rifle was loaded. I am not convinced that this is a per se requirement regardlessof the surrounding circumstances. I note that the cases on which the majority relies for thisproposition were decided by the Appellate Division, Third Department (see Yusko vRemizon, 280 App Div 637 [1952]), and the Appellate Division, Fourth Department (seeNapiearlski v Pickering, 278 App Div 456 [1951]). While this Court should accept thedecisions of the other Judicial Departments of the Appellate Division as persuasive, we are freeto reach a different result (see Mountain View Coach Lines v Storms, 102 AD2d 663,665 [1984]; see e.g. Klee v AmericasBest Bottling Co., Inc., 76 AD3d 544, 546 [2010]). I would further note that, in our priordecision and order in this matter, we referred only to whether or not the defendant had "actual orconstructive notice of the presence of the rifle in the closet" (Abrams v Berelson, 283AD2d at 598).
Here, in my opinion, in light of the facts that the rifle was misleadingly stored in a BB gunbox, and the defendant expressly stated that the injured plaintiff and Torres could take whateverthey wished from the house, if they notified her they were doing so, if the defendant indeed hadconstructive notice of the presence of the rifle, under these circumstances, she had, as well, aduty, at the least, to determine whether the rifle was loaded. In this regard, as the majorityobserves, the injured plaintiff and Torres were adults who should have been "no less able toassess and appreciate the danger of a weapon than the defendant, and the need to treat a weaponwith the utmost [*8]of care." However, I disagree with themajority in that, under the circumstances of this case, I conclude that the defendant, as the ownerof the home, who affirmatively invited the injured plaintiff and Torres into her home, asked themto sort through numerous items, and even offered to allow them to keep items, did owe a duty tothe injured plaintiff to at least determine whether the rifle was loaded. I reach this conclusion inlight of the fact that, in New York, "[a] landowner has a duty to exercise reasonable care inmaintaining its property in a safe condition under all the circumstances, including the likelihoodof injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, andthe foreseeability of a potential plaintiff's presence on the property" (Harris v Debbie's Creative Child Care,Inc., 87 AD3d 615, 616 [2011]; see Basso v Miller, 40 NY2d 233, 241 [1976]).
Finally, in my estimation, it is not necessary to resort to the parties' conflicting policyarguments to determine this appeal. As the plaintiffs observe, there is a strong public policy infavor of resolving cases on their merits (see e.g. Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d798, 800 [2010]). However, as the defendant observes, there is also a strong public policy infavor of finality. "Considerations of judicial economy as well as fairness to the parties mandate,at some point, an end to litigation" (Matter of Reilly v Reid, 45 NY2d 24, 28 [1978]).However, this matter is properly resolved on the grounds set forth above, without resort to thesepublic policy concerns. Additionally, I would note that it is highly unlikely that this case couldset an undesirable precedent encouraging litigants to reopen seemingly long-decided cases attheir whim. The facts surrounding this case, and Torres's lengthy and deliberate unavailability,are highly unusual, and granting the plaintiffs' motion for leave to renew under thesecircumstances would hardly open the floodgates to voluminous applications of a similar nature.
Thus, in my opinion, the new facts in the form of Torres's affidavit, in addition to theevidence already before the Supreme Court on the defendant's summary judgment motion,viewed in the light most favorable to the plaintiffs (see Pearson v Dix McBride, LLC, 63AD3d at 895), was sufficient to raise a triable issue of fact as to whether the defendant hadconstructive notice of the alleged dangerous condition consisting of the loaded rifle stored in abox labeled "Daisy air rifle b.b. gun" in the closet of the defendant's house. Therefore, I am of theopinion that Torres's affidavit "would change the prior determination" on the defendant's motion(CPLR 2221 [e] [2]). Accordingly, I believe that the Supreme Court providently exercised itsdiscretion in granting the plaintiffs' motion for leave to renew pursuant to CPLR 2221 (e), and,upon renewal, properly vacated the order dated August 30, 2000, and thereupon, denied thedefendant's motion for summary judgment dismissing the complaint. [Prior Case History: 28Misc 3d 1227(A), 2010 NY Slip Op 51515(U).]