Streit v. Katrine Apts. Assocs., Inc.

• Docket Number: 534026
• Decision Date: 12 January 2023
• Citation: 212 A.D.3d 957,183 N.Y.S.3d 171
• Parties: Phyllis STREIT, Respondent, v. KATRINE APTS. ASSOCIATES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 957

183 N.Y.S.3d 171

Phyllis STREIT, Respondent,

v.KATRINE APTS. ASSOCIATES, INC., Appellant.

534026

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

Calendar Date: November 17, 2022

Decided and Entered: January 12, 2023

Pillinger Miller Tarallo, LLP, Elmsford (Seth M. Weinberg of Mauro Lilling Naparty LLP, Woodbury, of counsel) for appellant.

Mainetti & Mainetti, PC, Kingston (John T. Casey Jr., Troy, of counsel), for respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeals (1) from a judgment of the Supreme Court (Richard Mott, J.), entered August 18, 2021 in Ulster County, upon a verdict rendered in favor of plaintiff, and (2) from an order of said court, entered April 13, 2022 in Ulster County, which denied defendant's motion to set aside the verdict.

In June 2018, plaintiff was injured after tripping over partially obstructed chicken wire connected to a downed fence while travelling to work from her apartment complex owned by defendant. As a result of the fall, plaintiff was diagnosed with a three-part proximal humerus fracture

requiring her to undergo surgery on her left shoulder in June 2018 and then an additional surgery in November 2020 to alleviate pain and increase her function. In March 2019, plaintiff commenced this action, alleging that defendant failed to maintain its property in a safe condition and that its negligence led to her injury. Following a trial, the jury found that defendant owned, occupied or exercised control over the location where plaintiff fell, that it failed to maintain that location in a reasonably safe condition and that such negligence was a substantial factor in causing plaintiff's injuries. The jury apportioned 70% of the fault for plaintiff's accident to defendant and awarded plaintiff $100,000 for past pain and suffering and $650,000 for future pain and suffering. Defendant thereafter moved pursuant to CPLR 4404 to set aside the verdict and order a new trial for liability and damages. Supreme Court denied the motion, determining that there was sufficient evidence for the jury to conclude that defendant had exercised control over the vicinity of plaintiff's fall and that the measure of damages was not excessive. Defendant appeals from the judgment on the verdict, as well as the order denying the motion to set it aside.

We affirm. Defendant contends that the jury verdict is not supported by legally sufficient evidence. More precisely, defendant contends that it did not own, occupy, exercise control or make special use of the property where plaintiff fell. Defendant further asserts that it owed no duty to plaintiff because the broken fence was an open and obvious condition. "A verdict may be set aside as unsupported by legally sufficient evidence where there is simply no valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Reynolds v. State of New York, 180 A.D.3d 1116, 1117, 119 N.Y.S.3d 266 [3d Dept. 2020] [internal quotation marks, brackets and citations omitted]; see Towne v. Kingsley, 163 A.D.3d 1309, 1310–1311, 82 N.Y.S.3d 636 [3d Dept. 2018] ). Under a sufficiency review, we undertake "a basic assessment of the jury verdict" and may not make a determination of "insufficiency in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon" ( Mazella v. Beals, 27 N.Y.3d 694, 705, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [2016] [internal quotation marks and citation omitted]; see Wright–Perkins v. Lyon, 188 A.D.3d 1604, 1605, 135 N.Y.S.3d 704 [4th Dept. 2020] ).

As relevant here, "[a] defendant may not be liable for a dangerous condition on property if it did not own, occupy, control or have a special use of the property" ( Williams v. Hudson N.Y. LLC, 199 A.D.3d 1083, 1083, 156 N.Y.S.3d 554 [3d Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261840 [2022] ; see Wisdom v. Reoco, LLC, 162 A.D.3d 1380, 1381, 79 N.Y.S.3d 717 [3d Dept. 2018] ). "In order for a landowner ... to be liable for a defective condition upon [his or her] property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Sloan v. 216 Bedford Kings Corp., 208 A.D.3d 1192, 1194, 175 N.Y.S.3d 105 [2d Dept. 2022] [internal quotation marks, ellipsis, brackets and citations omitted]; see Vickers v. Parcells, 198 A.D.3d 1160, 1162, 155 N.Y.S.3d 622 [3d Dept. 2021] ). "The fact that a dangerous condition is open and obvious does not relieve a defendant of all duty to maintain his or her premises in a reasonably safe condition" ( Mister v. Mister, 188 A.D.3d 1334, 1334, 135 N.Y.S.3d 165 [3d Dept. 2020] [internal quotation marks, brackets and citations omitted]; accord Hawver v. Steele, 204 A.D.3d 1125, 1128, 166 N.Y.S.3d 369 [3d Dept. 2022] ). In other words, "[t]he open and obvious nature of a hazard may obviate a claim that the property owner violated the duty to warn of, or place barriers to protect against, dangers on the premises, but does not eliminate a claim that the presence of the hazardous condition constituted a violation of the property owner's duty to maintain the premises in a reasonably safe condition" ( Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 75, 773 N.Y.S.2d 38 [1st Dept. 2004] ). The determination as to whether a condition is open and obvious generally falls within the province of a jury, as it requires consideration of the unique facts presented by the case before it (see Sebagh v. Capital Fitness, Inc., 202 A.D.3d 853, 855, 162 N.Y.S.3d 440 [2d Dept. 2022] ; Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d at 72, 773 N.Y.S.2d 38 ).

The evidence at trial established that, on the day of her fall, plaintiff decided to walk to work and elected to use a route that she had used on two prior occasions. That route required her to cross a wooden split rail fence with three horizontal posts near the edge of defendant's property. Photos introduced at trial illustrated that the portion of fence that plaintiff attempted to traverse was damaged, as the top horizontal post had fallen to the ground and the center horizontal post remained attached to a single vertical support. According to plaintiff, as she approached the fence and attempted to step over the detached horizontal posts, she tripped on chicken wire that was buried beneath pine needles and leaves, causing her to fall over the fence and injure her left shoulder. Plaintiff clarified that she was "one step" or "[a]bout a foot" from the fence when she tripped.

A letter between defendant and the Town of Ulster, Ulster County from 2009 evidences that, although there was some dispute as to ownership of the fence itself, defendant had performed maintenance on some portions of the fence pending resolution as to its ownership. The Town of Ulster indicated that it did not have a survey on file and that one would be necessary to definitively establish ownership, however, there is no indication that such a survey occurred prior to the accident, and the fence was left unmaintained. Defendant's maintenance manager was also unsure whether any part of the fence was on the property. The manager testified that he did not believe the fence was owned by defendant, however, he also noted that he did not have direct knowledge of the property line and that he was unaware whether the fence was on the property until the completion of the survey prior to trial. He also noted that maintenance workers would cut the grass on the area between the parking lot and the fence. Although at trial he denied mowing right up to the fence, he acknowledged that he previously testified inconsistently as to that point. The manager also conceded that defendant had hired a security company that placed signs and cameras around the property, including on various posts on the fence. The manager testified that defendant had removed a portion of the fence in a different area and replaced it with a flower bed.

Defendant also proffered the testimony of a surveyor that it had engaged to conduct a boundary survey of defendant's property, which took place in February or March 2020. The surveyor concluded that the fence was not on defendant's property, save for certain portions that ran along the property border but were not in the vicinity of plaintiff's fall. Specific to the area of broken fence where plaintiff fell, the surveyor determined that the fence was "1.6 feet" away from the boundary line and was located on the property that was now owned by the Town of Ulster. The surveyor acknowledged that he had observed the chicken wire around the fence, but he could not recall if any chicken wire was down near the broken portion of the fence and was unsure if it had extended away from the fence. To that end, the surveyor could not conclude one way or another as to whether the location where plaintiff fell was on defendant's property.

Based on the sum of evidence at trial, it is our view that the jury's verdict is legally sufficient. Defendant's contention that the testimony and evidence elicited from the surveyor is conclusive as to its liability is without merit. In this respect, while the survey established that the fence was beyond defendant's property in the area in question, the surveyor could not definitively state that the chicken wire that plaintiff tripped over, which was connected to the damaged portion of fence, had not extended onto defendant's property at the time of the fall (see Aller v. City of New York, 72 A.D.3d 563, 564, 900 N.Y.S.2d 41 [1st Dept. 2010] ; compare Galindo v. Town of Clarkstown, 305 A.D.2d 538, 539, 759 N.Y.S.2d 757 [2d Dept. 2003], affd 2 N.Y.3d 633, 781 N.Y.S.2d 249, 814 N.E.2d 419 [2004] ). Moreover, the testimony of defendant's...