Opinion
0012118/2002.
Dated: February 27, 2008.
ROSENBERG GLUCK, L.L.P., Attorneys for Plaintiff, Holtsville, New York.
DEVITT SPELLMAN BARRETT, LLP, Attorneys for Defendant, Smithtown, New York.
Upon the following papers numbered 1 to 35 read on this motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1-16; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 17-33; Replying Affidavits and supporting papers ___; Other affirmation in support 34; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion by defendant Frederick W. Drewes for summary judgment dismissing plaintiffs complaint is granted.
This is an action to recover damages for injuries allegedly sustained by plaintiff Michael Rotondi as a result of a slip and fall that occurred at defendant's home, located at 148 Shore Road, Mount Sinai, New York. Plaintiff, a tenant at defendant's home, alleges that he was injured when the last board of the deck connecting the deck's adjoining stairway broke as he stepped onto it. As a result of the board breaking, plaintiff alleges that he lost his balance and fell down the adjoining staircase.
Pursuant to the terms of the one year lease, commencing on December 27, 1999 and ending on January 2, 2001, the tenant had exclusive use and enjoyment of the premises. The terms of the lease required the tenant to mail the rental payments to defendant's agent, Pat Curran. The tenant was required to report all needed repairs to Ms. Curran, who would make the necessary arrangements to rectify the problem. The lease also stated that the tenant was not responsible for any structural repairs or alterations to the premises, and that all current maintenance contrasts shall be paid for by the landlord.
Defendant now moves for summary judgment on the basis that the plaintiff cannot establish that he either created or had actual or constructive notice of the alleged defective condition on the deck. In support of the motion, defendant submits the pleadings, copies of the parties' deposition transcripts and copies of photographs of the subject deck.
Plaintiff opposes the instant motion on the ground that the defendant had constructive notice of the deck's alleged defective condition. Plaintiff, in opposition, submits the pleadings, copies of the letters addressed to defendant regarding deteriorated conditions at the subject premises, and copies of photographs of the subject deck and the broken deck board. Plaintiff also submits affidavits swearing to the authenticity of the letters and photographs submitted. In addition, plaintiff submits a copy of the lease agreement between the parties and copies of the parties' deposition transcripts.
At his deposition, plaintiff testified that he rented the defendant's home in December of 1999. Plaintiff testified that after moving into the house he discovered the home was in a state of disrepair. He stated, among other things, the faucets were leaking, the electrical outlets and the smoke stack were duct taped, and there were mice in the basement, among other problems. Plaintiff testified that he sent letters with his rental payment informing Ms. Curran about the home's conditions. He testified that some of the repairs were made after he informed Ms. Curran, and that he stopped paying his rent when he was told that additional repairs would not be made until the defendant returned. Plaintiff testified that he had been in the house for five months when his accident occurred. He testified that when he attempted to traverse the deck's stairway the last board of the deck broke, causing him to fall down the stairs. Plaintiff stated that although he had previously used the deck, he had never attempted to use its stairway before his accident. Plaintiff testified that prior to his accident, he did not make any complaints to Ms. Curran or defendant about the deck. He further testified that he was not aware of anyone else having falling on the deck or down its stairway prior to his accident.
Defendant testified, in pertinent part, that the house was built in 1780 and that he purchased his home as a "handyman's special" in May 1969. He testified that the deck was added in 1896, but was reconstructed between 1965 and 1969. He testified that he made various repairs to the deck, but did not make any additions to it. According to defendant, he replaced the deck's steps in or about 1990, but he did not replace the deck's boards. Defendant testified that he entered into a lease with the plaintiff, because he was going to travel around the world for a year. He stated that his agent, Pat Curran was in charge of maintaining the premises and collecting the rent during his absence. Defendant testified that prior to signing the lease, plaintiff viewed the premises twice, including walking around the house and on the deck, and had a general conversation with him about the house's condition. He testified that prior to leasing the premises to plaintiff, he did not notice any deterioration on the deck or its boards, although he did not fully inspect the house. Defendant also testified that prior to plaintiffs accident, no one had ever-fallen on the deck, and none of its boards had broken. Defendant testified that while he was away he did not receive any information regarding the plaintiffs accident or problems with the deck. He stated that it was not until he returned from his trip that he learned of plaintiff's incident. Defendant further testified that there were no signs of deterioration on the broken boards that he removed upon his return.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact {see, Alvarez v Prospect Hospital , 68 NY2d 320 508 NYS2d 923; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316). The burden then shifts to the nonmoving party to demonstrate that there are material issues of fact, however, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact ( see, Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595; Perez v Grace Episcopal Church , 6 AD3d 596, 774 NYS2d 785).
In general, a landlord has a duty to maintain his premises in a reasonably safe manner under the circumstances ( see, Tagle v Jacob , 97 NY2d 165, 737 NYS2d 331). However, an out-of-possession landlord will only be held liable for failure to repair a dangerous condition if the landlord assumed a duty or is statutorily obligated to make repairs and reserved the right to reenter the premises in order to effect such repairs (Chapman v Silber , 97 NY2d 9, 19, 734 NYS2d 541; Juarez v Wavecrest Mgt. Team , 88 NY2d 628, 642, 649 NYS2d 155; see also, Restatement [Second] of Torts § 357). But before liability can be imposed on an out-of-possession landlord, it must be shown that the land lord had notice of the defective condition in existence on the premises and had a reasonable opportunity to repair it ( see, Wolfe v Long Is. Power Auth. , 34 AD3d 575, 824 NYS2d 390; Duniz v JLM Consulting Corp. , 22 AD3d 455, 803 NYS2d 653). Thus, the evidence must prove that the landlord either created the defective condition or had actual or constructive notice of the defective condition, such that the defect was apparent, visible and existed for a sufficient length of time to allow the landlord time to discover and remedy the situation ( see, Piacquadio v Recine Realty Corp. , 84 NY2d 967, 622 NYS2d 493; Gordon v American Museum of Natural History , 67 NY2d 836, 501 NYS2d 646); Portaro v Tillis Inv. Co. , 304 AD2d 635, 757 NYS2d 606). Furthermore, a general awareness on behalf of the landlord that a defective condition may exist is not legally sufficient to constitute notice of the particular condition that caused the plaintiffs injuries (Kennedy v Wegmans Food Markets, Inc. , 90 NY2d 923, 664 NYS2d 259; Gordon v American Museum of Natural History, supra).
Based upon the adduced evidence, defendant has demonstrated his prima facie entitlement to judgment as a matter of law ( see, Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra). The evidence submitted on behalf of defendant's motion establishes that he did not create or have notice that a defective condition existed on the deck (Richardson v Simone , 275 AD2d 576, 578, 712 NYS2d 672; see also, Mokszki v Pratt , 13 AD3d 709, 786 NYS2d 222). Furthermore, the record reveals that the defendant was never advised of any defects with the deck prior to the plaintiffs accident, or that the alleged defect would have been apparent to the defendant during a visual inspection of the deck ( see, Blaszczykv Ricco , 266 AD2d 491, 698 NYS2d 730; Freeman v Cobos , 240 AD2d 698, 659 NYS2d 424). In fact, plaintiff testified that prior to his accident he did not complain about any problems with the deck to either defendant or defendant's agent. Thus, defendant has demonstrated that he lacked actual or constructive notice of the alleged defective condition on the deck (Zeppetelli v 1372 Broadway, LLC , 8 AD3d 665, 665, 779 NYS2d 913; see generally, Abrams v Berelson , 283 AD2d 597, 725 NYS2d 81).
Plaintiff has failed to raise an issue of fact regarding defendant's notice of the deck's dangerous condition ( see, Klein v Sujin Food Corp. , 30 AD3d 331, 818 NYS2d 66 [2006]; Bacon v Altamont Farms , 33 AD2d 708, 304 NYS2d 1017, affd 11 NY2d 936, 318 NYS2d 313). Contrary to plaintiffs contention, it cannot be concluded, as a matter of law, that his letters written to defendant, but delivered to defendant's agent, establish the required element of notice. Although, plaintiff states in his letters that once the season changes there will be problems with the outside of the home, the letters do not conclusively demonstrate that the defendant was put on notice that the deck or its boards were in a state of deterioration ( see generally, Mokszki v Pratt, supra; Sadowsky v 2175 Wantagh Ave. Corp. , 281 AD2d 407, 721 NYS2d 665; compare, Webb v Audi , 208 AD2d 1122, 208 NYS2d 958). Plaintiff has not submitted any proof to show that the defendant received any complaints about the deck or that others had fallen on the deck prior to plaintiffs accident ( see, Pulley v McNeal , 240 AD2d 913, 658 NYS2d 732). Nor has any submission established the length of time that the alleged defective condition existed ( see generally, Vrenna v Tunis , 226 AD2d 1130, 642 NYS2d 129, appeal denied 89 NY2d 803, 653 NYS2d 280).
Plaintiffs claim that the photographs submitted in opposition raise a question as to defendant's notice of the alleged defective condition is also rejected. "[P]hotographs may be used to prove constructive notice of an alleged defect shown in the photographs if they are taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as shown in the photographs" (Rivera vNew York City Tr. Auth. , 22 AD3d 554, 555, 802 NYS2d 247 quoting Ferlito v Great S. BayAssoc. , 140 AD2d 408, 408-09, 528 NYS2d 111; see also, Muniz v New York City Tr. Auth. , 30 AD3d 388, 816 NYS2d 561). However, in view of the nature of the alleged defect and the absence of expert testimony or some other competent proof regarding the state of the deck board, or any proof establishing that the condition existed prior to plaintiffs accident, any inference that the defendant was placed on notice of the alleged defect constitutes mere speculation ( see, Gordon v American Museum of Natural History, supra; Karten v City of New York, 109 AD2d 126, 490 NYS2d 503. Accordingly, defendant's motion for summary judgment is granted.