Haseley v. Abels

• Decision Date: 10 May 2011
• Citation: 84 A.D.3d 480,2011 N.Y. Slip Op. 03891,922 N.Y.S.2d 393
• Parties: Nancy HASELEY, Plaintiff–Appellant,v.Gregory ABELS, et al., Defendants–Respondents,The City of New York, Defendant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 480
922 N.Y.S.2d 393
2011 N.Y. Slip Op. 03891

Nancy HASELEY, Plaintiff–Appellant,
v.
Gregory ABELS, et al., Defendants–Respondents,The City of New York, Defendant.

Supreme Court, Appellate Division, First Department, New York.

May 10, 2011.

[922 N.Y.S.2d 394]

Eric H. Green, New York (Hiram Anthony Raldiris of counsel), for appellant.Rebore, Thorpe & Pisarello, P.C., Farmingdale (Timothy J. Dunn III of counsel), for respondents.GONZALEZ, P.J., SAXE, CATTERSON, ACOSTA, MANZANET–DANIELS, JJ.

[84 A.D.3d 481] Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 13, 2009, which, to the extent appealed from as limited by the briefs, granted the Abels defendants' motion for summary judgment, reversed, on the law, without costs, the motion denied, the complaint reinstated against those defendants, and the matter remanded for further proceedings.

Defendants Gregory and Karpal Abels own a brownstone at 120 Washington Place in Manhattan. In the early 1970s, the Abelses arranged for a metal fence to be built around a tree well in front of their property. The square fence consisted of four sides, which were originally welded together. Each side had repeating wicket shaped loops. The record does not indicate whether or how the fence was connected to the sidewalk or dirt surrounding the tree.

At her deposition, plaintiff testified that on the evening of December 28, 2004, she was walking home from dinner when she tripped on a dislodged portion of the Abelses' fence. She claimed that the fence was obstructing the sidewalk. She recounted that it was snowing at the time, and that approximately 1/4 inch of snow had accumulated on the ground. Haseley testified that she lived less than a block from the Abelses for at least four years prior to the accident, and would walk past their property several times every day, either walking to and from work or when walking her dog. She recounted that on several occasions prior to her accident, she observed the fence in a state of disrepair, with the side facing the house “loose, dislodged from the other sections and basically lying against the tree.”

In direct contrast to this account, Mr. Abels testified that he and his wife were away during the week plaintiff was injured, and had not seen the tree fence in disrepair until the beginning of 2005. He also testified that he had never received any complaints about the tree fence. A representative from the New York City Department of Parks, which maintains the tree and responds to complaints about its surrounding area, testified that his office had not received notice of any problem with the [84 A.D.3d 482] subject tree well. On November 3, 2005, plaintiff sued the Abelses and the City of New York.¹

At the close of discovery, the Abelses moved for summary judgment. They argued that they did not have actual or constructive notice of a hazardous condition of a dislodged tree fence. In support of their motion, defendants included portions of the deposition transcripts of plaintiff, Mr. Abels, and the city official, as well as photographs taken by plaintiff the day after the accident. In opposition, plaintiff submitted an affidavit stating that she had seen the tree fence in a state of disrepair for “several months before [her] accident.” Additionally, plaintiff submitted clearer photographs taken the day after the accident

[922 N.Y.S.2d 395]

showing the house side of the tree fence leaning in towards the tree. The motion court granted defendants' motion, finding no evidence that defendants had actual or constructive notice of the tree fence lying on the sidewalk, thereby creating a tripping hazard.

We reverse. A landowner has a duty to maintain its property in a reasonably safe condition ( Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ). A plaintiff alleging injury caused by a dangerous condition must show that the defendant either created the condition ( Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368 [1984], affd. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612 [1984] ), or failed to remedy it, despite actual or constructive notice thereof ( see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994]; Beck v. J.J.A. Holding Corp., 12 A.D.3d 238, 785 N.Y.S.2d 424 [2004], lv. denied 4 N.Y.3d 705, 792 N.Y.S.2d 898, ...