Opinion
837 CA 18–02138
11-15-2019
Yolanda JACKSON, Plaintiff–Respondent, v. Joyce RUMPF, Defendant–Appellant.
TREVETT CRISTO, P.C., ROCHESTER (ALAN J. DEPETERS OF COUNSEL), FOR DEFENDANT–APPELLANT. PULLANO & FARROW, ROCHESTER (CHRISTIAN VALENTINO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
TREVETT CRISTO, P.C., ROCHESTER (ALAN J. DEPETERS OF COUNSEL), FOR DEFENDANT–APPELLANT.
PULLANO & FARROW, ROCHESTER (CHRISTIAN VALENTINO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motion seeking summary judgment on the issues of negligence and sole proximate cause of the accident and seeking summary judgment dismissing the first affirmative defense and reinstating that affirmative defense, and as modified the order is affirmed without costs.
Memorandum: Plaintiff, a tenant in a property owned by defendant, commenced this premises liability action seeking damages for injuries she sustained when she fell outside her apartment after she allegedly stepped on a loose piece of asphalt from the driveway. Supreme Court, inter alia, granted those parts of plaintiff's motion seeking summary judgment on the issues of defendant's negligence and whether defendant's negligence was the sole proximate cause of the accident. The court also granted those parts of plaintiff's motion seeking summary judgment dismissing defendant's first affirmative defense, that the accident was caused by the culpable conduct of plaintiff, the seventh affirmative defense, that plaintiff failed to state a cause of action, and the tenth affirmative defense, that defendant lacked notice of the alleged dangerous condition.
We agree with defendant that the court erred in granting those parts of plaintiff's motion seeking summary judgment on the issues of negligence and sole proximate cause of the accident, and we therefore modify the order accordingly. " ‘A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition’ " ( Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case" ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] [internal quotation marks omitted]; see Hayes v. Texas Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1533, 954 N.Y.S.2d 348 [4th Dept. 2012] ), and the existence of a defect or dangerous condition " ‘is generally a question of fact for the jury’ " ( Trincere, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ; Tesak v. Marine Midland Bank, 254 A.D.2d 717, 717–718, 678 N.Y.S.2d 226 [4th Dept. 1998] ).
Viewing the evidence in the light most favorable to defendant, the nonmoving party (see Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007] ), we conclude that plaintiff failed to meet her prima facie burden on the motion of establishing as a matter of law that defendant was negligent in permitting a dangerous or defective condition to exist on the premises (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; see also CPLR 3212[b] ). Plaintiff testified at her deposition that she "stepped on a piece of the driveway" that was "maybe the size of a tennis ball if you were to cut it in half and it was flat." Plaintiff did not photograph or preserve the piece of asphalt that allegedly caused her to fall, however, and we conclude that her testimony created an issue of fact whether the alleged defect on the property was "trivial and nonactionable as a matter of law" ( Brumm v. St. Paul's Evangelical Lutheran Church, 143 A.D.3d 1224, 1226, 41 N.Y.S.3d 559 [3d Dept. 2016] ; see generally Hahn v. Wilhelm, 54 A.D.3d 896, 898, 865 N.Y.S.2d 240 [2d Dept. 2008] ). Inasmuch as plaintiff failed to establish that defendant was negligent in permitting a dangerous or defective condition to exist on the premises, she also "failed to establish as a matter of law that [defendant's negligence] was the sole proximate cause of the accident" ( Stone v. Neustradter, 129 A.D.3d 1615, 1616, 12 N.Y.S.3d 450 [4th Dept. 2015] ).
Furthermore, even assuming, arguendo, that plaintiff's submissions were sufficient to establish the existence of a dangerous or defective condition, we conclude that defendant raised a triable issue of fact by submitting evidence that the driveway was not in a dangerous or defective condition at the time of the accident. Specifically, defendant submitted photographs of the driveway showing that it was in a reasonably safe condition, and she submitted United States Department of Housing and Urban Development (HUD) inspection reports for the property that established that the property had passed annual HUD inspections from 2012 through 2015, which included the date of plaintiff's accident in August 2014 (see generally Hutchinson, 26 N.Y.3d at 82, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Grefrath v. DeFelice, 144 A.D.3d 1652, 1653–1654, 41 N.Y.S.3d 845 [4th Dept. 2016] ).
We also agree with defendant that the court erred in granting that part of the motion seeking summary judgment dismissing her first affirmative defense, that the accident was caused by the culpable conduct of plaintiff, and we therefore further modify the order accordingly. Plaintiff had the initial burden of establishing that the defense "is without merit as a matter of law" ( Humphreys v. 201 Mar. Ave., LLC, 17 A.D.3d 532, 533, 793 N.Y.S.2d 159 [2d Dept. 2005] ; see generally Skibinski v. Salvation Army, 307 A.D.2d 427, 428, 761 N.Y.S.2d 742 [3d Dept. 2003] ). Here, plaintiff failed to meet that burden because her own deposition testimony that she "didn't really pay attention" to the driveway or the surrounding area prior to the accident raised an issue of fact whether plaintiff's conduct was a proximate cause of the accident inasmuch as she walked down the porch stairway onto uneven ground in the middle of the night without using due care (see generally Skibinski, 307 A.D.2d at 428, 761 N.Y.S.2d 742 ).
We have considered defendant's remaining contentions and conclude that they are without merit.