Mister v. Mister

188 A.D.3d 1334

135 N.Y.S.3d 165

Rose M. MISTER, Respondent,

v.Susan MISTER, Appellant.

529977

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

Decided and Entered: November 5, 2020

Smith Sovik Kendrik & Sugnet, PC, Syracuse (Thomas J. DeBernardis of counsel), for appellant.

Coughlin & Gerhart, LLP, Binghamton (Caroline L. Myrdek of counsel), for respondent.

Before: Lynch, J.P., Clark, Devine, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an order of the Supreme Court (Lambert, J.), entered August 14, 2019 in Chenango County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff, who is defendant's mother, commenced this negligence action seeking damages for various injuries that she sustained in October 2015 when she slipped and fell while descending wooden steps attached to a front porch located outside the front door of defendant's home. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint, which plaintiff opposed. Supreme Court denied the motion, finding that triable issues of fact existed as to defendant's negligence. The court found that, although defendant asserts that the causes of plaintiff's fall were pine needles and/or moisture on the wooden steps, there is a factual question as to whether the steps were properly maintained and presented a dangerous condition. The court also found that questions of fact existed regarding whether defendant had actual and constructive notice of the alleged dangerous condition and whether the condition of the handrail caused or contributed to plaintiff's fall. Defendant appeals.

"To prevail on [a] motion for summary judgment, [the] defendant [is] required to establish that its property had been maintained in a reasonably safe condition, and that it did not create a dangerous condition that caused [the] plaintiff's fall or have actual or constructive notice of that condition" ( Maurer v. John A. Coleman Catholic High School, 91 A.D.3d 1168, 1168, 937 N.Y.S.2d 419 [2012] [internal quotation marks and citations omitted]; see Stewart v. ALCOA, Inc., 184 A.D.3d 1057, 1058, 126 N.Y.S.3d 233 [2020] ). "The fact that a dangerous condition is open and obvious does not relieve [a defendant] of all duty to maintain [his or her] premises in a reasonably safe condition" ( Greblewski v. Strong Health MCO, LLC, 161 A.D.3d 1336, 1337, 77 N.Y.S.3d 191 [2018] [internal quotation marks, brackets and citations omitted]; see MacDonald v. City of Schenectady, 308 A.D.2d 125, 128–129, 761 N.Y.S.2d 752 [2003] ). Additionally, "[c]onstructive notice, in contrast to actual notice, requires that the defect be visible and apparent and has existed for a sufficient period of time prior to the accident to permit a defendant to discover it and take corrective action" ( Torgersen v. A & F Black Cr. Realty, LLC, 158 A.D.3d 1042, 1042, 71 N.Y.S.3d 672 [2018] [internal quotation marks, brackets and citations omitted]; see Faville v. County of Albany, 163 A.D.3d 1297, 1298, 82 N.Y.S.3d 208 [2018] ). "A party who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific [recurrence] of that condition" ( Asprou v. Hellenic Orthodox Community of Astoria, 185 A.D.3d 641, 641, 127 N.Y.S.3d 584 [2020] [internal quotation marks, ellipsis and citation omitted] ). "[A] defendant can also demonstrate entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" ( Mulligan v. R & D Props. of N.Y. Inc., 162 A.D.3d 1301, 1301, 79 N.Y.S.3d 692 [2018] ; see Brumm v. St. Paul's Evangelical Lutheran Church, 143 A.D.3d 1224, 1227, 41 N.Y.S.3d 559 [2016] ).

In support of her motion for summary judgment, defendant offered, among other things, her own testimony, the deposition testimony of plaintiff and several family members, color photographs of the front porch and wooden steps and an affidavit and accompanying report of Daniel Leary, an architect. Plaintiff explained that, on the morning of the accident, there were a lot of pine needles covering the porch and that it was "dewy" and "misty." Plaintiff acknowledged that she had no difficulty ascending the wooden porch steps but then, when she descended the steps, she slipped on the middle step and fell. After her fall, plaintiff observed pine needles covering the steps where she had fallen. Plaintiff also testified that she grabbed the spindles attached to the railing when she fell to stop herself. Defendant testified that, in addition to plaintiff, several other people have fallen on the same wooden steps, both before and after plaintiff's fall. Defendant is not aware of what caused the fall in each of those incidents, although she did testify that it was raining during one of the falls. Defendant stated that, prior to plaintiff's fall, defendant also slipped on the wooden steps several times. Defendant testified that pine needles made the steps slippery and that, even without the pine needles, the steps are slippery when they are wet and that the steps sometimes appear to be "grimy." Defendant testified that she never treated the wooden porch or steps with water-resistant materials or stain, but she stated that she would regularly sweep the steps to remove the pine needles. Defendant also admitted that both her father and plaintiff complained about the condition of the steps.

Testimony from other witnesses, primarily family members, established that the steps were...