McGirr v. Shifflet

208 A.D.3d 949

173 N.Y.S.3d 368

William MCGIRR, Plaintiff-Appellant,

v.Robin SHIFFLET, Defendant-Respondent.

214

CA 21-00451

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

Entered: August 4, 2022

CAMPBELL & ASSOCIATES, HAMBURG (JASON M. TELAAK OF COUNSEL), FOR PLAINTIFF-APPELLANT.

WALSH, ROBERTS & GRACE, BUFFALO (KEITH N. BOND OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint insofar as it alleges that defendant is vicariously liable for the negligence of her independent contractor and insofar as plaintiff relies on the doctrine of res ipsa loquitur, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when, while renting defendant's cottage for a week, a portion of the deck abutting the cottage separated from the house, causing the deck to sink and plaintiff to fall. Plaintiff appeals from an order that, inter alia, granted the motion of defendant for summary judgment dismissing the complaint.

We reject plaintiff's contention that defendant failed to meet her initial burden on her motion of establishing that she did not create or have constructive notice of the allegedly dangerous condition. It is well established that "[a] landowner is liable for a dangerous or defective condition on his or her property when the landowner created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it" ( Eagan v. Page 1 Props., LLC , 171 A.D.3d 1452, 1453, 99 N.Y.S.3d 522 [4th Dept. 2019] [internal quotation marks omitted]). Here, defendant established that she did not create the allegedly dangerous condition through the submission of, inter alia, her own deposition testimony and the deposition testimony of the contractor that she hired to replace the deck after its collapse. Defendant also established that she did not have constructive notice of the allegedly defective condition. "[C]onstructive notice, in contrast to actual notice, requires that the defect be visible and apparent and ha[ve] existed for a sufficient period of time prior to the accident to permit a defendant to discover it and take corrective action" ( Mister v. Mister , 188 A.D.3d 1334, 1335, 135 N.Y.S.3d 165 [3d Dept. 2020] [internal quotation marks omitted]; 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 [1986] ). "When, however, a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" ( Arevalo v. Abitabile , 148 A.D.3d 658, 659, 48 N.Y.S.3d 506 [2d Dept. 2017] [internal quotation marks omitted]; see Curiale v. Sharrotts Woods, Inc. , 9 A.D.3d 473, 475, 781 N.Y.S.2d 47 [2d Dept. 2004] ). Here, defendant's submissions established, inter alia, that there was nothing to arouse her suspicion as to the defective condition that would have triggered a duty to inspect (see Pommerenck v. Nason , 79 A.D.3d 1716, 1717, 914 N.Y.S.2d 826 [4th Dept. 2010] ; see generally Anderson v. Justice , 96 A.D.3d 1446, 1447, 946 N.Y.S.2d 739 [4th Dept. 2012] ). We further conclude that, contrary to plaintiff's contention, he failed to raise a triable issue of fact in opposition to the motion with respect to his allegations that defendant created or had constructive notice of the allegedly dangerous condition (see Brink v. Anthony J. Costello & Son Dev., LLC , 66 A.D.3d 1451, 1452-1453, 886 N.Y.S.2d 301 [4th Dept. 2009] ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

Nevertheless, we agree with plaintiff that he raised a triable issue of fact with respect to the doctrine of res ipsa loquitur (see generally Brink , 66 A.D.3d at 1452-1453, 886 N.Y.S.2d 301 ; Champagne v. Peck , 59 A.D.3d 1130, 1131, 872 N.Y.S.2d 836 [4th Dept. 2009] ). In New York, in order to establish liability under that doctrine, the plaintiff must establish that the event was: "(1) of a kind which ordinarily does not occur in the absence of someone's negligence; (2) ... caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) ... not ... due to any voluntary action or contribution on the part of the plaintiff" ( Dermatossian v. New York City Tr. Auth. , 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986] [internal quotation marks omitted]; see Zapata v. Yugo J & V, LLC , 183 A.D.3d 956, 957-958, 123 N.Y.S.3d 275 [3d Dept. 2020] ). "The exclusive control requirement ... is that the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it" ( Dermatossian , 67 N.Y.2d at 227, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [internal quotation marks omitted]). "The purpose is simply to eliminate within reason all explanations for the injury other than the defendant's negligence" ( id. ). With respect to the first and third elements, "common experience informs us that a deck being put to its regular and intended use does not ordinarily collapse in the absence of negligence" and, here, "plaintiff[ ] [was not] contributorily negligent in causing the collapse" ( Zapata , 183 A.D.3d at 958, 123 N.Y.S.3d 275 ). With respect to the second element, the deck had been under the control of defendant since it was built approximately nine years prior to the accident, and defendant testified at her deposition that she and her husband, who acted as the property manager, were the only ones responsible for maintaining and inspecting the property. Thus, plaintiff raised a triable issue of fact whether defendant exercised "exclusive control over the deck such that the elements of the doctrine of res ipsa loquitur were satisfied" ( id. at 959, 123 N.Y.S.3d 275 ; see Marinaro v. Reynolds , 152 A.D.3d 659, 661-662, 59 N.Y.S.3d 87 [2d Dept. 2017] ; Herbst v. Lakewood Shores Condominium Assn. , 112 A.D.3d 1373, 1374-1375, 978 N.Y.S.2d 519 [4th Dept. 2013] ). We therefore modify the order accordingly.

We further agree with plaintiff that defendant failed to meet her initial burden on her motion with respect to plaintiff's claim that defendant is vicariously liable for the negligence of the independent contractor who built the deck (cf. Dragotta v. Southampton Hosp. , 39 A.D.3d 697, 699, 833 N.Y.S.2d 638 [2d Dept. 2007] ; see generally Pinnock v Mercy Med. Ctr. , 180 A.D.3d 1088, 1092-1093, 119 N.Y.S.3d 559 [2d Dept. 2020] ; Robinson v. Downs , 39 A.D.3d 1250, 1252, 834 N.Y.S.2d 770 [4th Dept. 2007] ). "Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" ( Brothers v. New York State Elec. & Gas Corp. , 11 N.Y.3d 251,...