Hamlin v. McTighe

• Decision Date: 05 June 1997
• Citation: 240 A.D.2d 792,658 N.Y.S.2d 150
• Parties: Dorothy M. HAMLIN, Appellant, v. Dennis McTIGHE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 150

658 N.Y.S.2d 150

240 A.D.2d 792

Dorothy M. HAMLIN, Appellant, v. Dennis McTIGHE, Respondent.

Supreme Court, Appellate Division,

Third Department.

June 5, 1997.

Smyk, Smyk & Fahrenz LLP (Stephen D. Smyk, of counsel), Binghamton, for appellant.

Williamson, Clune & Stevens (John S. McCaffrey, of counsel), Ithaca, for respondent.

Before CARDONA, P.J., and MERCURE, CREW, WHITE and CARPINELLO, JJ.

CARDONA, Presiding Justice.

Appeal from a judgment of the Supreme Court (Mugglin, J.), entered March 7, 1996 in Delaware County, upon a verdict rendered in favor of defendant.

On November 26, 1992, while approaching her daughter's apartment in the Village of Unadilla, Otsego County, plaintiff slipped on moss covering some of the stones on the walkway resulting in injuries to her right hip. Plaintiff commenced the instant action against defendant, the owner of the premises, for his alleged failure to maintain the walkway in a safe condition. A trial ensued and the jury found that although the premises were not in a reasonably safe condition, defendant was not negligent. Plaintiff appeals.

We affirm. Initially, we reject plaintiff's argument that the jury verdict was against the weight of the evidence because the evidence allegedly established that defendant had constructive notice of the dangerous condition of the walkway. ¹ A verdict may be successfully challenged as against the weight of the evidence when " 'the evidence so preponderate[d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence' " (Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163, quoting Moffatt v. Moffatt, 86 A.D.2d 864, 447 N.Y.S.2d 313, affd 62 N.Y.2d 875, 478 N.Y.S.2d 864, 467 N.E.2d 528; see, Grassi v. Ulrich, 87 N.Y.2d 954, 956, 641 N.Y.S.2d 588, 664 N.E.2d 499; Adler v. Londner, 228 A.D.2d 1003, 1004, 644 N.Y.S.2d 840, 841). In order "[t]o constitute constructive notice, the alleged defect must be visible and apparent and it must have existed for a sufficient length of time prior to the accident to permit the defendant[ ] * * * to discover and remedy it" (Henness v. Lusins, 229 A.D.2d 873, 875, 645 N.Y.S.2d 937, 940; see, Lottie v. Edwards-Knox Cent. School Dist., 235 A.D.2d 678, 679, 652 N.Y.S.2d 144, 145).

Here, plaintiff argues that, as a matter of law, defendant must have had constructive notice of the dangerous condition on the walkway because it allegedly existed so long. However, the record reveals that, aside from one witness who specifically testified that she slipped on the walkway two months before plaintiff's fall, the remaining witnesses gave no specific information as to the precise time when they first noticed the mossy condition or how long it was there (cf., Secof v. Greens Condominium, 158 A.D.2d 591, 592, 551 N.Y.S.2d 563). Although pictures of the walkway taken after the accident were submitted into evidence, no expert testimony was presented to establish how long the mossy condition existed (cf., id., at 593, 551 N.Y.S.2d 563). With respect to the visibility of the condition, both plaintiff and her husband testified that they did not notice any moss on the walkway prior to the accident.

Given this and other evidence, the jury could fairly make the finding that defendant did not have either actual or constructive notice of the dangerous condition (see, e.g., McKinnis v. City of Schenectady, 234 A.D.2d 760, 762, 650 N.Y.S.2d 910, 912). Thus, we conclude that the evidence presented by plaintiff cannot be said to have so preponderated in her favor that the jury's verdict was erroneous as a matter of law.

Finally, we find no merit to plaintiff's contention that Multiple Residence Law § 174, which places a duty on owners to keep dwellings "in good repair, clean and free from vermin, rodents,...