| Cook v Indian Brook Vil., Inc. |
| 2012 NY Slip Op 07940 [100 AD3d 1247] |
| November 21, 2012 |
| Appellate Division, Third Department |
| Lorraine T. Cook, Respondent, v Indian Brook Village,Inc., et al., Appellants. |
—[*1] Bendall & Mednick, Schenectady (J. David Burke of Law Office of J. David Burke, ofcounsel), for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered August 17,2011 in Saratoga County, which denied defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this action seeking damages for injuries she sustained when sheallegedly tripped and fell on an exterior sidewalk step while entering her apartment building,allegedly due to the height of the step and lack of a handrail that caused a hazardous anddangerous condition. After issue was joined and discovery completed, defendants moved forsummary judgment dismissing the complaint. Supreme Court denied the motion and this appealensued.
We affirm. In order for defendants to prevail on their motion for summary judgment, theymust establish as a matter of law that the property in question was maintained in a reasonablysafe condition and that they neither created the allegedly dangerous condition existing thereonnor had either actual or constructive notice thereof (see Reid v Schalmont School Dist., 50 AD3d 1323, 1324 [2008]).In support of their motion, defendants relied principally on the affidavits of Thomas Hesnor, aprofessional engineer who conducted an inspection of the site, reviewed depositions, photographsand pleadings. Hesnor opined that neither a nine-inch step riser nor the lack of handrails violatedthe applicable building code. However, whether the step [*2]complied with the building code is not dispositive of plaintiff'sclaim, which is premised on common-law negligence principles (see Kellman v 45 TiemannAssoc., 87 NY2d 871, 872 [1995]; Washington v Albany Hous. Auth., 297 AD2d426, 427 [2002]; Wilson v Proctors Theater & Arts Ctr. & Theater of Schenectady, 223AD2d 826, 828 [1996]). Furthermore, even though the step had not been altered since defendantIndian Brook Village, Inc. purchased the apartment complex in the mid-1980s and the greaterheight differential compared to the adjacent steps was open and obvious, defendants failed tomeet their legal burden of establishing that they did not have either actual or constructive noticeof the allegedly defective condition (seeOates v Iacovelli, 80 AD3d 1059, 1060-1061 [2011]). Accordingly, as defendants failedto establish their entitlement to summary judgment as a matter of law, the sufficiency ofplaintiff's proof need not be examined (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is affirmed,with costs.