Hill v. Aubin

188 A.D.3d 1520

136 N.Y.S.3d 506

Susan A. HILL, Respondent,

v.Paul B. AUBIN, Appellant.

529908

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 16, 2020

Decided and Entered: November 25, 2020

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from an order of the Supreme Court (Powers, J.), entered July 11, 2019 in Schenectady County, which denied defendant's motion for summary judgment dismissing the complaint.

In March 2014, plaintiff fell and sustained severe injuries to her hip after stepping on a wooden floorboard plank that cracked as she was exiting the attic of defendant's two-family home. Plaintiff resided in the second-floor apartment since 1995 under predecessor owners, and her tenancy continued when defendant purchased the home in 2008 and moved into the first-floor apartment. The wooden floorboard that snapped had been cut by the prior owners to accommodate a ventilation pipe into the attic.

In January 2017, plaintiff commenced this action against defendant alleging, among other things, negligent maintenance of the attic flooring. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint, contending that he could not be held liable for the alleged dangerous condition of the attic floor because it was a latent condition that he neither created nor of which he had actual or constructive notice. Supreme Court denied the motion, prompting this appeal.

We affirm. "As the party seeking summary judgment, defendant bore the initial burden of demonstrating that [he] had maintained the property in a reasonably safe condition and that [he] did not create or have actual or constructive notice of the specific alleged[ ] dangerous condition that resulted in plaintiff's injury" ( Firment v. Dick's Sporting Goods, Inc., 160 A.D.3d 1259, 1259–1260, 74 N.Y.S.3d 671 [2018] [internal quotation marks and citation omitted]; see Torgersen v. A & F Black Cr. Realty, LLC, 158 A.D.3d 1042, 1042, 71 N.Y.S.3d 672 [2018] ; Kraft v. Loso, 154 A.D.3d 1265, 1265, 63 N.Y.S.3d 566 [2017] ).¹ Constructive notice, in contrast to actual notice, requires that the condition be "visible and apparent and exist[ ] for a sufficient period of time prior to the accident to permit the defendant to discover it and take corrective action" ( Rose v. Kozak, 175 A.D.3d 1656, 1658, 108 N.Y.S.3d 500 [2019] [internal quotation marks, brackets and citations omitted]; see Torgersen v. A & F Black Cr. Realty, LLC, 158 A.D.3d at 1042, 71 N.Y.S.3d 672 ; Beck v. Stewart's Shops Corp., 156 A.D.3d 1040, 1041, 66 N.Y.S.3d 79 [2017] ).

In support of his motion, defendant submitted, among other things, the parties' deposition testimony, a building inspection report dated November 2008, photographs of the interior of the attic and the affidavit of an engineer. As relevant here, plaintiff testified that, on the day of the accident, she and a friend cleaned up the attic at defendant's request by moving the boxes that she wanted to remain in the attic to one side and removing other boxes from the attic that she no longer needed to store. When they were done, plaintiff's friend descended the stairs. As plaintiff started walking to the stairs, the at-issue wooden floorboard cracked, causing her foot to go into the board, at which time her body twisted and she lost her balance and fell onto the floor below. Although the parties agreed that there was at least three feet of visible floor from the top stair of the attic, the parties disagreed on whether the ventilation pipe and condition of the wooden floorboard that was cut to accommodate the pipe were readily observable at the time of the accident and at any time prior thereto.

Plaintiff claimed that the view of the pipe was unobstructed, as none of her boxes or storage items was in front of or around the pipe prior to or at the time of the accident. In contrast, defendant testified that plaintiff's boxes obstructed any view of the pipe, and the boxes were not moved to allow for inspection of the floor underneath the boxes during the pre-purchase inspection of the house, or at any time thereafter, despite the roof leakage and water damage that was revealed by the inspection. Defendant further testified that he was not aware of the vent pipe coming through the flooring until after he was shown photographs of the cracked board after the accident, even though he had been in the attic on multiple occasions prior to the accident to change the furnace filter, which had been last changed in November 2013. Defendant also testified that the pipe could very likely be a bathroom vent, as a bathroom had been redone prior to his purchase of the house, noting that, if it was a bathroom vent, "[i]t's bad practice to be venting a pipe like that into an attic space from a bathroom. It should be going up the soffit or the roof or the side of the building." Defendant, who testified that he had experience in remodeling houses and was made aware of water damage to the attic, failed to inspect the entire attic floor before he purchased the house, and instead limited his inspection and that of his structural engineer to the flooring "from the point of the stairs to the furnace."

Defendant also submitted the affidavit of a professional engineer, who opined, based solely on a review of the pleadings, deposition testimony and some of the photographs taken of the floorboard, that a visual inspection of the floorboard in question would not have revealed that it was structurally infirm. Specifically, the engineer opined that "[t]he subject floorboard that failed had apparent lack of support due to installation workmanship by the builder. This condition was hidden as a latent defect and was not readily observable by visual inspection of the floor walking surface." Although defendant's engineer never conducted a visual inspection of the cracked floorboard in person to support his conclusion that its condition was latent,...