Defendant Homeowner Demonstrated She Did Not Have Actual or Constructive Notice of the Dangerous Condition and Did Not Create the Dangerous Condition (Deck Collapsed When Plaintiff Was Inspecting the Property Prior to Beginning Work)

The Second Department affirmed the grant of summary judgment to the defendant homeowner.  While inspecting defendant’s property before beginning work, the deck collapsed when plaintiff was walking on it.  The plaintiff sued under Labor Law 200 and common law negligence, alleging a dangerous condition.  Defendant demonstrated she did not have actual or constructive notice of the condition:

Where, as here, a plaintiff’s alleged injury arose from a dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing that he or she neither created the dangerous condition nor had actual or constructive notice of it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … .

Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law by establishing that the she did not have actual or constructive notice of the defect in the deck, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that she did not create the defect. Nicoletti v Iracane, 2014 NY Slip Op 07991, 2nd Dept 11-19-14