Opinion
CA 19–00857 1317
01-31-2020
Jane Griffin MEECH, Plaintiff–respondent v. Robert J. ANTHONY, Jr., and Sarah Yerkovich, Defendants–appellants
LAW OFFICES OF JOHN WALLACE, BUFFALO (JAMES J. NAVAGH OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS. GELBER & O'CONNELL, LLC, AMHERST (TIMOTHY G. O'CONNELL OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
LAW OFFICES OF JOHN WALLACE, BUFFALO (JAMES J. NAVAGH OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS.
GELBER & O'CONNELL, LLC, AMHERST (TIMOTHY G. O'CONNELL OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
PRESENT: WHALEN, P.J., PERADOTTO, TROUTMAN, AND BANNISTER, JJ.
Appeal and cross appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered January 2, 2019. The order denied the motion of plaintiff for partial summary judgment and denied the cross motion of defendants for summary judgment.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the cross motion in part and dismissing the complaint insofar as it alleges that defendants had actual notice of the allegedly dangerous condition and as modified the order is affirmed without costs.
Memorandum: After slipping and falling on the front porch of defendants' home, plaintiff commenced this action to recover damages for injuries that she allegedly sustained as a result of the fall. Later in the same month when plaintiff fell, defendants took photographs of the porch. Subsequently, approximately five weeks after the fall, plaintiff took photographs of the porch. Unlike defendants' photographs, plaintiff's photographs appear to depict a green substance on the porch. In addition, the photographs depict planters on the porch. Defendant Sarah Yerkovich testified at her deposition that she watered plants that grew in the planters and that water could leak out of the planters onto the porch. In his affidavit, plaintiff's expert opined that water had saturated the wooden porch over a period of "many months," leading to the development of a "microbial growth" that would have become slippery in wet weather, such as occurred on the day of the fall. Plaintiff, at her deposition, viewed a photograph of the porch and identified a skid mark in the alleged growth as the location of the fall. Plaintiff moved for partial summary judgment on, inter alia, the issue of negligence, and defendants cross-moved for summary judgment dismissing the complaint. Defendants appeal and plaintiff cross-appeals from an order denying the motion and cross motion.
We agree with defendants on their appeal that Supreme Court erred in denying the cross motion with respect to the claim that defendants had actual notice of the allegedly dangerous condition, and we therefore modify the order accordingly. "To establish that they did not have actual notice of the allegedly dangerous condition, defendants were required to show that they did not receive any complaints concerning the area where plaintiff fell and were unaware of any ... [slippery] substance in that location prior to plaintiff's accident" ( Navetta v. Onondaga Galleries LLC, 106 A.D.3d 1468, 1469, 964 N.Y.S.2d 835 [4th Dept. 2013] ; see Cosgrove v. River Oaks Rests., LLC, 161 A.D.3d 1575, 1576, 76 N.Y.S.3d 350 [4th Dept. 2018] ). In support of their cross motion, defendants submitted the affidavit of defendant Robert J. Anthony, Jr., wherein he stated that he never observed a slippery organic growth on the porch prior to the fall and that no one had ever complained to him about the condition of the porch. In opposition, plaintiff failed to raise an issue of fact with respect to defendants' actual notice (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] ).
Contrary to their further contentions, defendants failed to meet their initial burden of establishing that the green substance on the porch did not constitute a dangerous condition (see Smith v. Szpilewski, 139 A.D.3d 1342, 1342, 32 N.Y.S.3d 393 [4th Dept. 2016] ; cf. Wiedenbeck v. Lawrence, 170 A.D.3d 1669, 1669, 96 N.Y.S.3d 781 [4th Dept. 2019] ), that they lacked constructive notice of the condition (see Clarke v. Wegmans Food Mkts., Inc., 147 A.D.3d 1401, 1402, 46 N.Y.S.3d 360 [4th Dept. 2017] ; see generally 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] ), that they did not create the condition (see Chamberlain v. Church of the Holy Family, 160 A.D.3d 1399, 1400–1401, 75 N.Y.S.3d 718 [4th Dept. 2018] ), or that plaintiff could not identify what caused her to fall without engaging in speculation (see Doner v. Camp, 163 A.D.3d 1457, 1457, 79 N.Y.S.3d 833 [4th Dept. 2018] ). Even assuming, arguendo, that defendants met their initial burden on those claims, we conclude that plaintiff raised an issue of fact by submitting the affidavit of her expert. Although plaintiff's expert relied upon photographs that were taken approximately five weeks after the fall, that fact does not render his opinion inadmissible, but rather goes to its weight (see generally Sample v. Yokel, 94 A.D.3d 1413, 1414, 943 N.Y.S.2d 694 [4th Dept. 2012] ; Jackson v. Nutmeg Tech., Inc., 43 A.D.3d 599, 602, 842 N.Y.S.2d 588 [3d Dept. 2007] ).
Inasmuch as there are issues of fact with respect to defendants' negligence, we reject plaintiff's contention on her cross appeal that she is entitled to partial summary judgment on that issue (cf. Rodriguez v. City of New York, 31 N.Y.3d 312, 315, 323, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ; see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Contrary to her further contention, res ipsa loquitur is inapplicable because the fall may have been caused by her own misstep (see Anderson v. Skidmore Coll., 94 A.D.3d 1203, 1205, 941 N.Y.S.2d 787 [3d Dept. 2012] ; see generally 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] ).