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PLAINTIFF FELL THROUGH THE DECK OF HER APRARTMENT; DEFENDANTS DID NOT SHOW A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE; THERE WAS NO CERTIFICATE OF OCCUPANCY ON FILE; THERE WAS A QUESTION OF FACT WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-landlord did not demonstrate a lack of actual or constructive notice of the condition of the deck which plaintiff fell through. In addition there was a question of fact whether the doctrine of res ipsa loquitur applied:

Defendants testified that they inspected the deck before purchasing the property and also obtained the services of an unidentified inspector. However, they failed to produce the inspection report or any evidence of its contents, nor did they establish that the defect in the deck could not have been discovered upon a diligent inspection … . In light of defendants’ failure to show lack of actual or constructive notice, it is of no moment that they did not create the defective condition of the deck.

… Plaintiff’s expert engineer opined that the lack of a certificate of occupancy for the property, including the deck, should have put defendants on notice that the deck was not compliant with applicable building codes and that an inspection would have uncovered weakened plywood under the deck’s tile surface.

… The doctrine of res ipsa loquitur allows an inference of negligence to be drawn where (1) the event is of a type that does not normally occur in the absence of negligence, (2) it was caused by an instrumentality within the exclusive control of the defendants, and (3) plaintiff’s actions did not contribute in any way to the occurrence … . The first and third elements are established here because “a deck being put to its regular and intended use does not ordinarily collapse in the absence of negligence,” and there is no claim that any contributory negligence by plaintiff caused the collapse … . The second element of exclusive control may be established to the extent that plaintiff’s claim is based on defendants’ failure to maintain the deck since their acquisition of the property, rather than on the illegal construction of the deck at some earlier date … . Rosario v Cao, 2024 NY Slip Op 00154, First Dept 1-11-24

Practice Point: Here the deck of plaintiff’s apartment collapsed and she fell through it. There was no certificate of occupancy on file. The elements of res ipsa loquitur were present. Defendants therefore did not demonstrate a lack of actual or constructive notice of the condition of the deck.

 

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