Louis-Juste v. Fisher Park Lane Owner, LLC

205 A.D.3d 703

165 N.Y.S.3d 738 (Mem)

Ducarmel LOUIS–JUSTE, appellant,

v.FISHER PARK LANE OWNER, LLC, respondent.

2019–09237

Index No. 513364/15

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

Submitted—February 24, 2022

May 4, 2022

Raphaelson & Levine Law Firm, New York, NY (Steven C. November of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Patrick J. Lawless of counsel), for respondent.

BETSY BARROS, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated June 19, 2019. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On January 29, 2014, the plaintiff allegedly sustained personal injuries during the course of his employment at the defendant's property in Manhattan, while he was transporting 25 pounds of painting-related supplies in a basket/cart with four wheels. As the plaintiff was walking backwards down a concrete ramp at the defendant's loading dock, facing and holding the basket, he allegedly slipped on ice. The plaintiff commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence. The Supreme Court granted the motion, stating that the evidence showed that the plaintiff fell because his cart struck the adjacent rail, not because there was snow and ice on the ramp. The plaintiff appeals. We affirm on different grounds.

A landowner has a duty to maintain his or her premises in a reasonably safe manner (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 560, 792 N.Y.S.2d 123 ; see Dougherty v. 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763, 764, 142 N.Y.S.3d 92 ). A defendant has constructive notice of a dangerous or defective condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). Here, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party (see Chang v. Marmon Enters., Inc., 172 A.D.3d 678, 679, 99 N.Y.S.3d 397 ; Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 ), the evidence submitted by the defendant in support of the motion, including surveillance videos of the accident, did not establish, prima facie, that there was no ice on the ramp at the time of the accident and that the accident was caused by the cart coming into contact with the adjacent rail rather than as a result of the...