| Patrick v Grimaldi |
| 2012 NY Slip Op 08207 [100 AD3d 1320] |
| November 29, 2012 |
| Appellate Division, Third Department |
| Paulette A. Patrick, Appellant, v A.J. Bernardo Grimaldi etal., Business as P.M.E.V. Service, Respondents. |
—[*1] Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III of counsel), forrespondents.
Egan Jr., J. Appeal from an order of the Supreme Court (Becker, J.), entered June 21, 2011 inDelaware County, which granted defendants' motion for a directed verdict at the close ofplaintiff's case.
In September 2007, plaintiff, who had resided in the same apartment in the Town of Sydney,Delaware County for approximately 14 years, went into the attic to retrieve some seasonaldecorations. The attic was accessible only via a set of stairs located inside of plaintiff's apartmentand, according to plaintiff, only a portion of the attic had an actual floor. After collecting thedesired items, plaintiff turned to start back down the stairs and, in the process, stepped on a blackfloor mat that purportedly covered an opening in the attic floor. Plaintiff fell partially through theopening, with her leg lodging in the bedroom ceiling below.
Plaintiff thereafter commenced this action against defendants, who had purchased thebuilding two months before plaintiff's accident, seeking to recover for the injuries sustained. Thematter proceeded to trial and, at the conclusion of plaintiff's case, defendants moved for adirected verdict pursuant to CPLR 4401. Supreme Court granted defendants' motion, and thisappeal by plaintiff ensued.[*2]
Viewing the evidence in the light most favorable toplaintiff and according her the benefit of every favorable inference that reasonably may be drawntherefrom, we nonetheless conclude that there is no rational process by which the jury could havefound in her favor (see Brenner vDixon, 98 AD3d 1246, 1247 [2012]; Aikens-Hobson v Bruno, 97 AD3d 709, 710 [2012]). Accordingly,we affirm.
As this Court recently reiterated, "an out-of-possession landlord [generally] is not responsiblefor dangerous conditions existing upon leased premises after possession of the premises has beentransferred to the tenant" (Vanderlyn vDaly, 97 AD3d 1053, 1055 [2012] [internal quotation marks and citations omitted]; see Oates v Iacovelli, 80 AD3d1059, 1060 [2011]). Although certain exceptions to this rule exist—namely, "wherethe landlord retains control of the premises, has specifically contracted to repair or maintain theproperty, has through a course of conduct assumed a responsibility to maintain or repair theproperty or has affirmatively created a dangerous condition" (Vanderlyn v Daly, 97AD3d at 1055 [internal quotation marks and citations omitted]; accord Davison vWiggand, 247 AD2d 700, 701 [1998])—none of those exceptions may be said to existhere.
The proof at trial established that there was no lease governing the parties' respectiveresponsibilities to repair or maintain either plaintiff's apartment or the attic, nor is there anyindication that defendants otherwise assumed a contractual obligation to do so (see Grady v Hoffman, 63 AD3d1266, 1268 [2009]; Rossal-Daub v Walter, 58 AD3d 992, 995 [2009]; compare Bush v Mechanicville WarehouseCorp., 69 AD3d 1207, 1207 [2010]). Further, even assuming—as plaintiffcontends—that defendants "had the authority to enter the attic at any time," a limited rightto visit the premises would be "insufficient to establish the requisite degree of control necessaryfor the imposition of liability with respect to an out-of-possession landlord" (Grady vHoffman, 63 AD3d at 1268 [internal quotation marks and citations omitted]; compare Marino v A.G. Props. of Kingston,LLC, 85 AD3d 1429, 1429-1430 [2011]; Stickles v Fuller, 9 AD3d 599, 600-601 [2004]). Similarly, itcannot be said that defendants, by their conduct, assumed a responsibility to maintain or repairthe property. Finally, there is nothing in the record to suggest that defendants either created thehole in question or placed the offending mat over it and, hence, there is no basis upon which toconclude that defendants affirmatively created a dangerous condition on the property.
Nor are we persuaded that liability may be imposed based upon defendants' actual orconstructive notice of the alleged condition. Plaintiff does not contend that defendants had actualnotice of either the opening or the floor mat covering it, and defendant A.J. Bernardo Grimalditestified that plaintiff never complained regarding the condition of either her apartment or theattic (see Moore v Ortolano, 78AD3d 1652, 1652 [2010]; Ensher vCharlton, 64 AD3d 1032, 1033 [2009]), nor did she ask him to make any repairs withrespect thereto. Moreover, despite having lived in the apartment for 14 years and having accessedthe attic periodically during that time, plaintiff herself was completely unaware of the opening(see Moore v Ortolano, 78 AD3d at 1652) and did not recall seeing the floor mat prior tothe day of her accident. Absent " 'notice of a specific dangerous condition, an out-of-possessionlandlord cannot be faulted for failing to repair it' " (Oates v Iacovelli, 80 AD3d at 1060,quoting Chapman v Silber, 97 NY2d 9, 20 [2001]). Accordingly, there is no basis uponwhich to infer constructive notice to defendants (compare Duff v De Sorbo, 304 AD2d870, 871 [2003]). Plaintiff's remaining contentions, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.
Peters, P.J., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,with costs.