Whyte v. Whyte

Appellate Division of the Supreme Court of New York

Whyte v. Whyte

259 A.D.2d 1009, 689 N.Y.S.2d 894, 1999 N.Y. App. Div. LEXIS 3387

Appellate Division of the Supreme Court of the State of New York·Decided March 31, 1999·Published·Cited by 1 cases

Opinion

Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. To impose liability on a landowner, a plaintiff must establish the existence [1010]*1010of a dangerous or defective condition and that the owner either created the condition or had actual or constructive notice of it (see, Lowrey v Cumberland Farms, 162 AD2d 777, 778). Here, questions of fact exist whether the excessive vegetation growing out of the crack in the step on defendant’s property constituted a dangerous or defective condition and whether defendant had actual or constructive notice of the condition. Summary judgment was therefore precluded (see generally, Hourigan v McGarry, 106 AD2d 845, appeal dismissed 65 NY2d 637). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.

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Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. To impose liability on a landowner, a plaintiff must establish the existence [1010]*1010of a dangerous or defective condition and that the owner either created the condition or had actual or constructive notice of it (see, Lowrey v Cumberland Farms, 162 AD2d 777, 778). Here, questions of fact exist whether the excessive vegetation growing out of the crack in the step on defendant’s property constituted a dangerous or defective condition and whether defendant had actual or constructive notice of the condition. Summary judgment was therefore precluded (see generally, Hourigan v McGarry, 106 AD2d 845, appeal dismissed 65 NY2d 637). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.

Whyte v. Whyte, 259 A.D.2d 1009, 689 N.Y.S.2d 894, 1999 N.Y. App. Div. LEXIS 3387 (N.Y. Ct. App. 1999).

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Opinion

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