Dougherty v. 359 Lewis Ave. Assoc., LLC

Summary

The Appellate Division, Second Department, affirmed the denial of a property owner's motion for summary judgment in a premises-liability action. The court held that the absence of a code violation did not resolve common-law negligence issues and that the defendant failed to establish lack of constructive notice of an unguarded fire-escape stairway opening.

Holdings

1. The absence of a violation of a specific code or ordinance is not dispositive of common-law negligence claims; a landowner may be negligent for departing from generally accepted customs and practices even when the condition complies with relevant codes and ordinances.
2. A defendant is not entitled to summary judgment where it fails to establish prima facie that it lacked constructive notice of a dangerous condition that was visible, apparent, and present for a sufficient period to permit discovery and remediation.
3. An open-and-obvious condition and allegations that the plaintiff was negligent bear on comparative negligence but do not, by themselves, absolve the defendant of liability.

Questions Presented

1. Whether the defendant established entitlement to summary judgment by showing that the unguarded stairway opening was not a dangerous or defective condition because it complied with applicable codes and statutes.
2. Whether the defendant established prima facie that it lacked constructive notice of the allegedly dangerous condition.
3. Whether the allegedly open and obvious danger or the plaintiff's conduct in standing with his back to the opening absolved the defendant of liability at the summary-judgment stage.

Disposition

affirmed