| Decker v Schildt |
| 2012 NY Slip Op 08220 [100 AD3d 1339] |
| November 29, 2012 |
| Appellate Division, Third Department |
| Buena Decker et al., Appellants, v Timothy C. Schildt, asExecutor of Dolores R. Schildt, Deceased, Respondent. |
—[*1] Hiscock & Barclay, LLP, Albany (Charles Z. Feldman of counsel), for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Devine, J.), entered January 11,2012 in Albany County, which granted defendant's motion for summary judgment dismissing thecomplaint.
On the morning of September 27, 2008, plaintiff Buena Decker (hereinafter plaintiff) and herhusband attended an estate sale conducted by defendant at property owned by decedent, hismother. As plaintiff was leaving that portion of the sale conducted within the residence, sheslipped and fell while descending a set of wooden stairs leading from the front door. Accordingto plaintiff, the accident was caused by a slippery accumulation of moss and/or mold on the topstep of the staircase. Plaintiffs commenced this action against defendant, as executor ofdecedent's estate, to recover for the injuries plaintiff sustained as a result of the fall. Followingjoinder of issue and discovery, defendant moved for summary judgment dismissing thecomplaint. Supreme Court granted the motion, prompting this appeal.
To establish entitlement to summary judgment in a slip and fall case, a defendant has thethreshold burden of establishing that the property was maintained in a reasonably safe conditionand that he or she neither created nor had actual or constructive notice of the allegedly [*2]dangerous condition (see Bedell v Rocking Horse Ranch Corp., 94 AD3d 1389, 1390[2012]; Connolly v United HealthServs., Inc., 77 AD3d 1274, 1275 [2010]). Here, defendant testified that he repeatedlytraversed the stairs during the months preceding the estate sale, and at no time did he find any ofthe steps to be mossy or otherwise slippery. Defendant testified further that he was neither awareof anyone having fallen on the steps prior to plaintiff's accident nor had he received anycomplaints that the steps were slippery or covered in mold or moss. Linda Foley, who was hiredby decedent's family to assist with the estate sale, testified that she used the steps that morning,swept them in preparation for the sale and did not notice any mold or moss. It was alsoestablished that several other people used the steps the morning of the sale without incident andthat, shortly before plaintiff's fall, four men had moved a piano down the steps withoutcomplaining of any slippery conditions. Defendant's wife, who was also present during the sale,explained that she inspected the stairs after plaintiff's fall but did not see anything that wouldmake them slippery or cause plaintiff to fall. This evidence was sufficient to shift the burden toplaintiffs to raise a triable issue of fact (see CPLR 3212 [b]; Raczes v Horne, 68 AD3d 1521,1522 [2009]; Ennis-Short vOstapeck, 68 AD3d 1399, 1400 [2009]).
Plaintiffs concede that there is no proof that defendant created the condition or had actualnotice, but argue that factual issues exist regarding constructive notice. "Constructive noticerequires a showing that the condition was visible and apparent and existed for a sufficient periodof time prior to the accident to permit defendant[ ] to discover it and take corrective action"(Bedell v Rocking Horse Ranch Corp., 94 AD3d at 1390 [internal quotation marks andcitations omitted]; see Gordon v American Museum of Natural History, 67 NY2d 836,837 [1986]; Marino v A.G. Props. ofKingston, LLC, 85 AD3d 1429, 1430 [2011]).
To support their claim of constructive notice, plaintiffs submitted photographs of the frontstaircase taken "a couple days" after the accident which depict a slight green hue on certainportions of some of the steps. Such photographs, however, do not establish an apparent andvisible slippery or otherwise dangerous condition on the stairs (see Hockenberry v Mehlman, 93 AD3d915, 916-917 [2012]; Olsen vMartin, 32 AD3d 625, 626 [2006]). Indeed, the record contains no evidence that anyone,including plaintiff, observed moss or mold on the steps prior to the accident, and plaintiff herselftestified that she did not know whether the "green" area depicted on the stairs was moss ornot.[FN*]While both plaintiff and a nonparty witness testified that the steps were slippery on the day ofplaintiff's fall, the evidence established that it had rained the night before and plaintiff, as well asothers, testified that there was intermittent rain or drizzle throughout the morning of the sale."[T]he mere fact that a floor or walkway becomes slippery when wet does not establish adangerous condition" (Todt v Schroon Riv. Campsite, 281 AD2d 782, 783 [2001];see Miller v Gimbel Bros., 262 NY 107, 108 [1933]; Bacon v Altamont Farms,33 AD2d 708, 709 [1969], affd 27 NY2d 936 [1970]).
Nor have plaintiffs provided any evidence to establish how long the alleged mossy [*3]condition existed (see e.g. Hamlin v McTighe, 240 AD2d792, 793 [1997]; compare Secof v Greens Condominium, 158 AD2d 591, 592-593[1990]) and, absent any description of the nature and characteristics of the alleged mold ormoss—such as how much of it had developed or how large of a surface area itcovered—there is no evidentiary basis to infer the duration of the condition (see Di Sanza v City of New York, 11NY3d 766, 767 [2008]; Salty v Altamont Assoc., 198 AD2d 591, 592 [1993];compare Taylor v New York City Tr. Auth., 48 NY2d 903, 904 [1979]; Anderson vCentral Tractor Farm & Family Ctr., 250 AD2d 1023, 1024 [1998]). Plaintiffs' assertion thatthe mold/moss-like condition must have, by its nature, been present for a sufficient amount oftime for defendant to have noticed it is purely speculative and, thus, insufficient to raise aquestion of fact as to constructive notice (see Campagnano v Highgate Manor ofRensselaer, 299 AD2d 714, 715-716 [2002]; Maiorano v Price Chopper OperatingCo., 221 AD2d 698, 699 [1995]; Bashaw v Rite Aid of N.Y., 207 AD2d 632, 632[1994]). Accordingly, Supreme Court properly granted defendant's motion for summaryjudgment.
Lahtinen, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: To the extent that plaintiff statedotherwise in her affidavit in opposition to the motion, such a self-serving attempt to contradicther prior deposition testimony cannot create questions of fact (see Valenti v Exxon Mobil Corp., 50AD3d 1382, 1384 [2008]; Conollyv Thuillez, 26 AD3d 720, 722 [2006]; Campagnano v Highgate Manor ofRensselaer, 299 AD2d 714, 715 [2002]).