Denyse v. Gelernter
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Opinion
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Bureau Thomas J.K. Smith, State Reporter
Denyse v Gelernter
2026 NY Slip Op 04176
July 1, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Thomas Denyse, appellant,
v
David Gelernter, etc., et al., respondents.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 1, 2026
2024-12431, (Index No. 613289/18)
Lara J. Genovesi, J.P.
Lillian Wan
Lourdes M. Ventura
Susan Quirk, JJ.
Hackett Law, P.C., Garden City, NY (Patrick Hackett and Hegge & Confusione, LLC [Michael Confusione], of counsel), for appellant.
Law Offices of Curtis, Vasile, Mehary & Dorry, P.C. (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated October 8, 2024. The order granted the defendants' motion for summary judgment dismissing the amended complaint.
ORDERED that the order is affirmed, with costs.
In April 2018, the plaintiff allegedly was injured while performing tree and brush removal services on premises owned by the defendants. At the time of the accident, the plaintiff was leaning against the railing of the defendants' second-floor exterior deck when the railing gave way, causing him to fall to the ground. The plaintiff subsequently commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the amended complaint, arguing, inter alia, that they lacked constructive notice of the alleged defective condition of the railing and that any such condition was a latent defect. In an order dated October 8, 2024, the Supreme Court granted the defendants' motion. The plaintiff appeals.
"In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous condition nor had actual or constructive notice of its existence" (Elizee v Village of Amityville, 172 AD3d 1004, 1004; see Hayden v 334 Dune Rd., LLC, 196 AD3d 634, 635). "A defendant has constructive notice of a dangerous or defective condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Vargas v Lamberti, 186 AD3d 1572, 1573; see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). "To meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred" (Lyman v Cablevision of Ossining Ltd. Partnership, 215 AD3d 945, 948; see Guzman v 787 Holdings, LLC, 228 AD3d 628, 629). However, "[w]hen a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" (Schnell v Fitzgerald, 95 AD3d 1295, 1295; see Alexandridis v Van Gogh Contr. Co., 180 AD3d 969, 972).
Here, the defendants established, prima facie, that they did not have constructive notice of the defect in the railing, as this defect was latent and was not discoverable upon a reasonable inspection prior to the plaintiff's fall. In support of their motion, the defendants submitted, among other things, an affidavit from an engineer who opined that the railing gave way because it was constructed using finish nails rather than common nails or metal brackets and screws, and that this defect was latent and could not have been discovered by the defendants upon a reasonable inspection (see K.B. v City of Mount Vernon, 230 AD3d 727, 728; Hoffman v Brown, 109 AD3d 791, 792; McMahon v Gold, 78 AD3d 908, 910).
In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). A report of an engineer submitted by the plaintiff was not in admissible form, and the plaintiff offered no excuse for failing to tender the report in admissible form (see CPLR 2106; Sanchez-Trujillo v Beach 119, LLC, 225 AD3d 726, 726). In any event, even if the report were in admissible form, the report would have been insufficient to raise a triable issue of fact as to whether the defendants could have discovered the alleged defect upon a reasonable inspection.
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the amended complaint.
GENOVESI, J.P., WAN, VENTURA and QUIRK, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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