O'Connor-Miele v. Barhite & Holzinger, Inc.

• Decision Date: 12 December 1996
• Docket Number: CONNOR-MIELE
• Citation: 234 A.D.2d 106,650 N.Y.S.2d 717
• Court: New York Supreme Court — Appellate Division
• Parties: Diane O', et al., Plaintiffs-Appellants, v. BARHITE & HOLZINGER, INC., et al., Defendants-Respondents.

Page 717

650 N.Y.S.2d 717

234 A.D.2d 106

Diane O'CONNOR-MIELE, et al., Plaintiffs-Appellants, v. BARHITE & HOLZINGER, INC., et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Dec. 12, 1996.

Howard M. Goldstein, for plaintiffs-appellants.

William E. Fay III, for defendants-respondents.

Before SULLIVAN, J.P., and ELLERIN, ROSS, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Huff, J.), entered on or about May 25, 1995, which granted defendants' motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

"[O]n a defendant's motion for summary judgment, opposed by plaintiff, we are required to accept the plaintiff's pleadings, as true, and our decision 'must be made on the version of the facts most favorable to [plaintiff]'." (Henderson v. City of New York, 178 A.D.2d 129, 130, 576 N.Y.S.2d 562, quoting Strychalski v. Mekus, 54 A.D.2d 1068, 1069, 388 N.Y.S.2d 969). Applying that standard to the matter herein, we find that the evidence presented by plaintiff created a material question of fact which precludes summary judgment.

It is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the extant circumstances, including the likelihood of injuries to others, the potential for any such injuries to be of a serious nature and the burden of avoiding the risk (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Karamarios v. Bernstein Management Corp., 204 A.D.2d 139, 612 N.Y.S.2d 12). This duty is, of course, tempered, as defendants point out, by the necessity that a party, as a prerequisite for recovering damages, must establish that the landlord created or had either actual or constructive notice of the hazardous condition that precipitated the injury (Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795; Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-38, 501 N.Y.S.2d 646, 492 N.E.2d 774), and by the rule that, "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the owner's] employees to discover and remedy it" (id. at 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).

While this burden is a significant one, it is clear that, contrary to d...