Pommerenck v. Nason

• Decision Date: 30 December 2010
• Citation: 914 N.Y.S.2d 826,79 A.D.3d 1716
• Parties: Brigid POMMERENCK, as administratrix of the estate of Eric Pommerenck, Deceased, Plaintiff-Respondent, v. Gerald R. NASON, Jr., Defendant, Gerald R. Nason, Sr., and Rosemary Nason, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 826

79 A.D.3d 1716

Brigid POMMERENCK, as administratrix of the estate of Eric Pommerenck, Deceased, Plaintiff-Respondent,

v.Gerald R. NASON, Jr., Defendant, Gerald R. Nason, Sr., and Rosemary Nason, Defendants-Appellants.

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

Dec. 30, 2010.

Hurwitz & Fine, P.C., Buffalo (Michael F. Perley of Counsel), for Defendants-Appellants.

Law Offices of Eugene C. Tenney, Buffalo (Courtney G. Scime of Counsel), for Plaintiff-Respondent.

PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

MEMORANDUM:

Plaintiff commenced this wrongful death action, as administratrix of the estate of her husband (decedent), seeking damages for the fatal injuries decedent sustained when a hay elevator collapsed on him. Gerald R. Nason, Sr. and Rosemary Nason (collectively, defendants) owned but did not reside on the property where the accident occurred (property). Their son, defendant Gerald R. Nason, Jr., used the property on occasion to store junk equipment, including the hay elevator. Decedent and a friend went to the property to inspect the hay elevator with the intent of purchasing it.

We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint against them. 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' " ( Anderson v. Weinberg, 70 A.D.3d 1438, 1439, 894 N.Y.S.2d 292). Here, defendants met their initial burden of establishing that they did not create the allegedly defective condition on the property and that they did not have actual notice of it, and plaintiffs failed to raise a triable issue of fact inopposition ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Gerald Nason, Sr. testified at his deposition that the property consists of approximately 38 to 40 acres of largely undeveloped farmland, which he uses in the summer months to grow hay for his dairy farm. Prior to the accident in December 2005, Gerald Nason, Sr. last visited the property in September 2005 when he finished baling hay for the season. In addition, Rosemary Nason testified that she never visited the property and that she had nothing to do with the property apart from her ownership thereof.

We further conclude that defendants met their initial burden of establishing that they did not have constructive notice of the allegedly defective condition, and plaintiff failed to raise a triable issue of fact in opposition ( see Pueng Fung v. 20 W. 37th St. Owners, LLC, 74 A.D.3d 635, 903 N.Y.S.2d 392; see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Although defendants submitted evidence establishing that the hay elevator had been located on the property for at least 2 1/2 months and that they may have driven by the property "four or five times" during that period, there was no evidence that the hay elevator was visible from the road. In any event, even assuming, arguendo, that defendants were aware of the existence of the hay elevator on the property, we conclude that such awareness does not establish that they had constructive notice of any alleged defect in the hay elevator ( see Moore v. Ortolano, 78 A.D.3d 1652, 912 N.Y.S.2d 362). Indeed, Gerald Nason, Jr. testified at his deposition that the condition of the hay elevator could not be observed without coming onto the property.

Nevertheless, "landowner[s] may be under an affirmative duty to conduct reasonable inspections of the premises, despite the general notion that notice is a prerequisite to recovery for injuries caused by a dangerous condition" (3 Warren's Negligence in New York Courts § 56.02, at 56-10 [2d...