| Barley v Robert J. Wilkins, Inc. |
| 2014 NY Slip Op 08086 [122 AD3d 1116] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| Edna Barley, Appellant, v Robert J. Wilkins, Inc.,Respondent. |
Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), forappellant.
Maynard, O'Connor, Smith & Catalinotto, LLP, Saugerties (Adam T. Mandellof counsel), for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Cahill, J.), entered March27, 2013 in Ulster County, which granted defendant's motion for summary judgmentdismissing the complaint.
Plaintiff sustained injuries when she fell while descending a single-step riser in abuilding owned by defendant where she was employed as the manager of a bus terminal.She commenced this negligence action alleging that her fall was due to the height of theriser and defendant's failure to install a handrail or permanent step. Following joinder ofissue and discovery, defendant moved for summary judgment dismissing the complaint.Supreme Court granted the motion, prompting plaintiff's appeal.
To prevail on its motion for summary judgment, defendant was required to show thatit maintained the premises in a reasonably safe condition and that it did not create or havenotice of any allegedly dangerous condition (see Carter v State of New York, 119 AD3d 1198, 1199[2014]; Jankite v Scoresby HoseCo., 119 AD3d 1189, 1189-1190 [2014]; Timmins v Benjamin, 77 AD3d 1254, 1254 [2010]). Whilethe existence of a dangerous or defective condition is generally a question for thefactfinder (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Moons v Wade Lupe Constr. Co.,Inc., 24 AD3d 1005, 1006 [2005]; Lamarre v Rensselaer County PlazaAssoc., 303 AD2d 914, 914 [2003]), "summary judgment is appropriate where aplaintiff fails to demonstrate the existence of any dangerous condition" (Bilinski v Bank ofRichmondville, 12 AD3d 911, 911-912 [2004]; see Jones v Shamrock of Ithaca,Inc., 78 AD3d 1299, 1300 [2010]).
Here, defendant failed to establish as a matter of law that it maintained the premisesin a reasonably safe condition (see Page v State of New York, 72 AD3d 1456, 1458[2010]; Reinemann v Stewart's Ice Cream Co., 238 AD2d 845, 846 [1997]). Insupport of its argument that the riser did not constitute a dangerous condition, defendantpresented an affidavit of Ronald Bova, a professional engineer who inspected thepremises. Bova observed that the single-step riser was immediately apparent, as it waslocated in a doorway and the flooring on either side of the riser was of a contrasting colorand material. Although Bova further opined that the riser did not violate the 2002 or1964 state building codes because the building was constructed prior to their enactment,whether the building code applies to the riser is not dispositive of plaintiff's claim, whichis premised on common-law negligence principles (see Cook v Indian Brook Vil., Inc., 100 AD3d 1247, 1248[2012]; Wilson v Proctors Theater & Arts Ctr. & Theater ofSchenectady, 223 AD2d 826, 829 [1996]). Based on his inspection andmeasurements, Bova asserted that neither the height of the step nor the lack of a handrailmade the riser dangerous; however, he failed to definitively state the height of the riserand establish that it comported with generally accepted standards at the time the buildingwas constructed or thereafter (see Carter v State of New York, 119 AD3d at1200-1201; see also Alvia vMutual Redevelopment Houses, Inc., 56 AD3d 311, 312 [2008]).
Additionally, plaintiff testified that it was difficult for her and her coworkers totraverse the step because it was "very high." While defendant places great emphasis onplaintiff's admission that she stepped over the riser many times, as it was the only way toaccess the women's restroom, and that she was aware of the drop at the time that she fell,"[t]he germane issue in this case is not a failure to warn, but whether these premises werereasonably safe" (Sisson vMetromedia Steakhouses, Inc., 17 AD3d 855, 856 [2005]). The fact that adangerous condition is open and obvious does not relieve a landowner of all duty tomaintain his or her premises in a reasonably safe condition (see Coleman v Crumb RubberMfrs., 92 AD3d 1128, 1131 [2012]; Anton v Correctional Med. Servs., Inc., 74 AD3d 1682,1683 [2010]; MacDonald v City of Schenectady, 308 AD2d 125, 127 [2003]),and plaintiff's familiarity with the allegedly defective condition may be considered withrespect to her comparative negligence (see Finnigan v Lasher, 90 AD3d 1286, 1287 [2011];Sisson v Metromedia Steakhouses, Inc., 17 AD3d at 856; Monge v HomeDepot, 307 AD2d 501, 502 [2003]). Viewing the evidence in the light mostfavorable to plaintiff, as the nonmoving party, we find that defendant failed todemonstrate as a matter of law that the height of the riser was not a dangerous ordefective condition.
Further, defendant failed to meet its prima facie burden of demonstrating that it didnot create or have notice of the allegedly dangerous condition (see Reinemann vStewart's Ice Cream Co., 238 AD2d at 846). Defendant did not submit anyaffirmative evidence that the allegedly dangerous condition was not of its own creation,that any regular inspection of the premises was conducted or that it had not received anycomplaints regarding the height of the riser (compare Signorelli v Troy Lodge #141 Benevolent &Protective Order of Elks, 108 AD3d 831, 831 [2013]; Moons v Wade LupeConstr. Co., Inc., 24 AD3d at 1006). Moreover, plaintiff testified that the conditionof the riser existed for the entire three years that she worked at the premises, and furtheraverred that she and several coworkers had complained to defendant's principalrepeatedly about the difficulty presented by the height of the step. Inasmuch as thisevidence raises factual questions about whether defendant had actual notice of theallegedly dangerous condition (see Cook v Indian Brook Vil., Inc., 100 AD3d at1248) or whether the nature of the step, which was readily apparent and existed for asufficient amount of time to allow defendant to remedy the defect, provided defendantwith constructive notice (see Carter v State of New York, 119 AD3d at1199-1200; Godfrey v Town ofHurley, 68 AD3d 1527, 1528 [2009]; Ennis-Short v Ostapeck, 68 AD3d 1399, 1400 [2009]), weconclude that summary judgment should not have been granted. As defendant failed toestablish its entitlement to summary judgment as a matter of law, we need not considerthe sufficiency of plaintiff's submissions in opposition (see Cook v Indian Brook Vil.,Inc., 100 AD3d at 1248; Wilson v Proctors Theater & Arts Ctr. &Theater of Schenectady, 223 AD2d at 829).
Stein, Garry, Egan Jr. and Devine, JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motion denied.