McGirr v. Shifflet

• Decision Date: 04 August 2022
• Docket Number: 214 CA 21-00451
• Parties: WILLIAM MCGIRR, PLAINTIFF-APPELLANT, v. ROBIN SHIFFLET, DEFENDANT-RESPONDENT.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 04831

WILLIAM MCGIRR, PLAINTIFF-APPELLANT,
v.
ROBIN SHIFFLET, DEFENDANT-RESPONDENT.

No. 214 CA 21-00451

Supreme Court of New York, Fourth Department

August 4, 2022

CAMPBELL & ASSOCIATES, HAMBURG (JASON M. TELAAK OF COUNSEL), FOR PLAINTIFF-APPELLANT.

WALSH, ROBERTS & GRACE, BUFFALO (KEITH N. BOND OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.

Appeal from an order of the Supreme Court, Erie County (Mark A. Montour, J.), entered March 25, 2021. The order, inter alia, granted the motion of defendant for summary judgment and dismissed the complaint.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint insofar as it alleges that defendant is vicariously liable for the negligence of her independent contractor and insofar as plaintiff relies on the doctrine of res ipsa loquitur, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when, while renting defendant's cottage for a week, a portion of the deck abutting the cottage separated from the house, causing the deck to sink and plaintiff to fall. Plaintiff appeals from an order that, inter alia, granted the motion of defendant for summary judgment dismissing the complaint.

We reject plaintiff's contention that defendant failed to meet her initial burden on her motion of establishing that she did not create or have constructive notice of the allegedly dangerous condition. It is well established that "[a] landowner is liable for a dangerous or defective condition on his or her property when the landowner created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it" (Eagan v Page 1 Props., LLC, 171 A.D.3d 1452, 1453 [4th Dept 2019] [internal quotation marks omitted]). Here, defendant established that she did not create the allegedly dangerous condition through the submission of, inter alia, her own deposition testimony and the deposition testimony of the contractor that she hired to replace the deck after its collapse. Defendant also established that she did not have constructive notice of the allegedly defective condition. "[C]onstructive notice, in contrast to actual notice, requires that the defect be visible and apparent and ha[ve] existed for a sufficient period of time prior to the accident to permit a defendant to discover it and take corrective action" (Mister v Mister, 188 A.D.3d 1334, 1335 [3d Dept 2020] [internal quotation marks omitted]; see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838 [1986]). "When, however, a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" (Arevalo v Abitabile, 148 A.D.3d 658, 659 [2d Dept 2017] [internal quotation marks omitted]; see Curiale v Sharrotts Woods, Inc., 9 A.D.3d 473, 475 [2d Dept 2004]). Here, defendant's submissions established, inter alia, that there was nothing to arouse her suspicion as to the defective condition that would have triggered a duty to inspect (see Pommerenck v Nason, 79 A.D.3d 1716, 1717 [4th Dept 2010]; see generally Anderson v Justice, 96...