Hanleyv.Affronti

Appellate Division of the Supreme Court of New York, Fourth DepartmentDec 27, 2000
278 A.D.2d 868 (N.Y. App. Div. 2000)
278 A.D.2d 868718 N.Y.S.2d 753

December 27, 2000.

Appeal from Order of Supreme Court, Wyoming County, Rath, Jr., J. — Summary Judgment.

PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, WISNER AND LAWTON, JJ. (Filed Dec. 27, 2000.)


Order unanimously reversed on the law without costs, motion denied and complaint reinstated.

Memorandum:

Plaintiffs commenced this action seeking damages for injuries sustained by Lorraine S. Hanley (plaintiff) when she fell down a flight of stairs at defendants' house while visiting defendant wife. On the day of the accident, plaintiff entered defendants' house through the door attached to the garage , which leads to an alcove. When plaintiff leaned against the basement door while removing her boots, the door swung open and plaintiff fell down the stairs. Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint. "In order for a [property owner] to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon the property, it must be established that a defective condition existed and that the [property owner] affirmatively created the condition or had actual or constructive notice of its existence" ( Kuchman v. Olympia York, USA, 238 A.D.2d 381). The court properly determined based upon the conflicting expert affidavits that there is an issue of fact whether the basement door, which opens in toward the stairway rather than out toward the alcove, constitutes a dangerous condition. The court erred, however, in determining that defendants did not have constructive notice of the allegedly dangerous condition as a matter of law. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [defendants] to discover and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837). Defendants testified that they resided in that house for 30 years and that no one had previously fallen down the stairs. Plaintiffs contend, however, that it was reasonably foreseeable that a person leaning against the door would fall down the stairs where, as here, the door was not latched shut ( see generally, Quinlan v. Cecchini, 41 N.Y.2d 686, 690; Lacanfora v. Goldapel, 37 A.D.2d 721). Under the circumstances of this case, we conclude that there is a triable issue of fact whether defendants had constructive notice of the allegedly dangerous condition.