Opinion
2009-191 K C.
Decided July 7, 2011.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), dated December 6, 2006, deemed from a judgment of the same court entered September 2, 2010 (see CPLR 5520 [c]). The judgment, entered pursuant to the December 6, 2006 order granting defendants' motion for a directed verdict in their favor, dismissed the complaint.
ORDERED that the judgment is affirmed, without costs.
PRESENT: WESTON, J.P., PESCE and RIOS, JJ.
Plaintiff, who was a tenant in a building owned by defendant Colin Andrew Clarke, alleged that, on February 19, 2002, as she descended the exterior stairs of the building, a portion of a step broke off under her foot, causing her to fall and to sustain injuries; she brought this action to recover for those injuries. At a jury trial, although plaintiff asserted that the handrail was rusty and that there were other pre-existing cracks or holes in the stairs of the building, she testified that the spot where she fell had not, previously, either been broken or had other apparent defects. Plaintiff further stated that she was not holding on to the handrail as she descended the steps. After plaintiff completed the presentation of her case on the issue of liability, the Civil Court granted defendants' motion for a directed verdict dismissing the action, and this appeal ensued. A judgment was subsequently entered, from which we deem the appeal to have been taken ( see CPLR 5520 [c]).
It was incumbent on plaintiff to establish that defendants had either actual or constructive notice of the dangerous condition which caused plaintiff's accident, and that the defect had existed for a sufficient length of time prior to the accident to permit defendants or their employees to discover and remedy the defect ( see e.g. Gordon v American Museum of Natural History, 67 NY2d 836, 837; Leary v Leisure Glen Home Owners Assn., Inc., 82 AD3d 1169; Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629). "[C]onstructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection'" ( Lal v Ching Po Ng, 33 AD3d 668, 668, quoting Curiale v Sharrotts Woods, Inc., 9 AD3d 473, 475; see also Powell v Pasqualino, 40 AD3d 725). As plaintiff testified that, prior to her accident, the particular defect in the step which was the cause of her accident was not apparent, plaintiff failed to establish actual or constructive notice on the part of defendant Colin Andrew Clarke. We note that plaintiff failed to present any evidence at trial that defendant Beverly Ann Clarke had an ownership interest in the building where the accident occurred, or that would otherwise support the imposition of liability against said defendant.
Since plaintiff failed to make out a prima facie case as to each defendant, we conclude that the Civil Court properly granted defendants' motion for a directed verdict dismissing the action. Accordingly, the judgment is affirmed.
Weston, J.P., Pesce and Rios, JJ., concur.