The following papers numbered 1 to 4 were marked fully submitted on the 26th day of February, 2014:

Papers

Numbered

Motion for Summary Judgment and Dismissal of Complaint by

Defendants John Perrotta and Jennifer Franqui, with Supporting

Papers and Exhibits

(dated August 12, 2013).........................................................................1

Affirmation In Opposition by Plaintiff Tamara Garmize, with

Supporting Papers and Exhibits

(dated January 7, 2014).........................................................................2

Affirmation in Reply by Defendants John Perrotta and Jennifer

Franqui, with Supporting Papers and Exhibits

(dated January 27, 2014 ).......................................................................3 [*2]

Sur-Reply by Plaintiff Tamara Garmize

(dated February 17, 2014)......................................................................4

Upon the foregoing papers, the motion for summary judgment by DEFENDANTS John Perrotta and Jennifer Franqui (hereinafter the"DEFENDANTS") is denied.

This matter arises out of an incident which took place on July 9, 2011, sometime between the hours of 5 and 6 PM. At that time, PLAINTIFF was walking to her brother's house, located at 10 Behan Court, accompanied by her grandson. As she was walking around a car protruding from the driveway over the adjacent sidewalk, she slipped and fell on a stone, resulting in injury. The accident is claimed to have occurred in front of 4 Behan Court, which was owned by DEFENDANTS John Perrotta and Jennifer Franqui.^[FN1] It is undisputed that DEFENDANT Jennifer Franqui had placed numerous small stones on the grassy areas on either side of the driveway, as well as over the grassy berm between the outermost edge of the sidewalk and the cement curb of the street, to keep dogs away and prevent weeds from growing.

It is familiar law that the proponent of a motion for summary judgment must make a prima facie showing of a right to judgment as a matter of law, advancing sufficient evidence to demonstrate the absence of any material issues of fact ( see Silverman v. Perlbinder, 307 AD2d 230 [1st Dept 2003]). Thus, it is the proponent of the motion who bears the initial burden of both proof and persuasion ( see Diaz v. Alcantara, 2013 NY Slip Op 30170[U][ Sup Ct NY Co] Steifman v. Ziegelman, 2012 NY Slip Op 32015[U][ Sup Ct Richmond Co.], citing Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). However, once this burden has been met, it is incumbent upon the opposing party to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial" ( Alvarez v. Prospect Hosp., 68 NY2d at 324; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). In moving for summary judgment dismissing the complaint, the DEFENDANTS claim, among other things, that the PLAINTIFF has been unable to state with certainty, or has given differing testimony, as to the cause of her fall ^[FN2]; that she has been unable to specify the street number of the house in front of which she fell; that given the opportunity to indicate on photographs presented to her for the purpose, she was unable to specify the location of her fall; and that her claim to have fallen in front of DEFENDANTS' premises is undermined by her [*3]discontinuance of a previous claim against the owners of the adjacent premises, 6 Behan Court. In any event, DEFENDANTS maintain that PLAINTIFF has presented no evidence that these DEFENDANTS either created or had actual or constructive notice of an alleged dangerous condition.

In opposition, PLAINTIFF argues that she has consistently stated that she fell on a stone on the sidewalk in front of the first house she encountered after turning onto Behan Court; that her failure to know the street number of that house is not determinative given her consistent description of the premises in this fashion; and that she has supplied supporting affidavits from her brother and husband, both of whom came to her aid after she fell to the ground in front of 4 Behan Court. In addition, PLAINTIFF claims that she did not "fail to disclose" her prior claim against the owners of 6 Behan Court, since her present complaint was specifically labeled as an "amended complaint" when it was served upon these DEFENDANTS. PLAINTIFF further claims that the original institution of the action against the owners of 6 Behan Court was due to inadvertence, since the structure which spans both of the addresses is a duplex, and that the investigator from the office of her attorney who supplied the address upon which the original complaint was based, saw only the number "6" on the building and assumed that such was the address for the entire building. When this was later determined to be untrue, an amended complaint was served .^[FN3] Finally, PLAINTIFF maintains that DEFENDANTS created the condition which caused her to fall by placing stones in the grassy areas surrounding the driveway and curb, and that they were aware that these stones were frequently displaced onto the sidewalk. In support, PLAINTIFF points to DEFENDANT Jennifer Franqui's deposition testimony that she needed to routinely sweep the stones back into place. According to PLAINTIFF, this knowledge of the frequent displacement of the stones constituted a "recurring, dangerous condition" sufficient to have provided these DEFENDANTS with constructive notice of the hazard it presented.

In New York, a property owner has a duty to exercise due care keep his or her property in a reasonably safe condition for those who use it (Tagle v Jakob, 97 NY2d 165, 168 [2001]) The scope of this duty varies with the foreseeability of the possible harm ( see e.g. Basso v. Miller, 40 NY2d 233, 241 [1976]). Thus, when aware of a dangerous or defective condition on the property that is not open and obvious, the landowner also has a duty to warn (see Cupo v. Garfinkel, 1 AD3d 48, 51 [2d Dept 2003]).As a general rule, however, although charged with the duty to keep the property in a reasonably safe condition, a landowner generally will not be held liable for an injury arising out of a dangerous or defective condition unless he or she either created the condition, or had actual or constructive notice of its existence and a reasonable time to remedy the defect (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249-250 [ 1st Dept 1984], affd 64 NY2d 670 [1984]).

On a motion for summary judgment in a slip-and-fall action, DEFENDANT has the initial burden of making a prima facie demonstration that it neither created the hazardous [*4]condition, nor had actual or constructive notice of its existence (see Manning v. Americold Logistics, LLC, 33 AD3d 427 [1st Dept 2006]). If successful the burden of going forward shifts to the opponent(s) of the motion, who must adduce sufficient admissible evidence to raise a triable issue of fact as to, e.g., DEFENDANT'S creation of the defect or actual or constructive notice thereof ( Kesselman v. Lever House Rest, 29 AD3d 302, 304 [1st Dept 2006] see Smith v. Costco Wholesale Corp., 50 AD3d 499, 500 [1st Dept. 2008][denial of defendant's summary judgment motion reversed and complaint dismissed where, e.g., plaintiff only "assumed" that she fell due to a wet floor, and had no idea how long the water had been on the floor, or how it got there]).

In the opinion of this Court, even assuming that DEFENDANTS have demonstrated prima facie their right to judgment as a matter of law, PLAINTIFF has overcome that showing and established a triable issue of fact. Accordingly, the DEFENDANTS' motion for summary judgment must be denied.

DEFENDANTS claim that PLAINTIFF'S inability to identify, with "particularity", the area where she fell is alone sufficient to warrant the entry of summary judgment and dismissal of the complaint. In support, DEFENDANTS cite PLAINTIFF'S inability to give the correct street number of the house in front of which she fell, her inability to identify the area where she fell when presented with photographs of the location; and the alleged inconsistency between testimony at the §50-h hearing and at her deposition as to whether she had passed the first driveway which she encountered on Behan Court at the time of her fall.

However, PLAINTIFF has consistently testified that her fall occurred in front of the first house that she encountered after turning onto Behan Court, which are the premises owned by DEFENDANTS. Moreover, while she may not have been able to accurately give the street number for DEFENDANTS' house, her description of the area as having been overlaid with stones is entirely consistent with the premises owned by these DEFENDANTS. In any event, these inconsistencies would merely give rise to a question of credibility, which is to be decided by the trier of fact rather than the court on a motion for summary judgment ( DiGiantomasso v. City of New York, 55 AD3d 502, 503 [1st Dept 2008]). Further, PLAINTIFF has provided this Court with affidavits from her husband and brother, both of whom came to her aid while she was still on the ground, and both of whom state that she was lying in front of 4 Behan Court.^[FN4] Contrary to DEFENDANTS' assertions, it is the opinion of this Court that this testimony and the affidavits of PLAINTIFF'S husband and brother do not represent an attempt to create a "feigned factual issue" specifically designed to defeat their motion for summary judgment (compare Capraro v. Staten Isl Univ Hosp, 245 AD2d 256, 257 [2d Dept 1997]).

The cases relied upon by DEFENDANTS on this point do not compel a different result. [*5]Bosco v. Lindenhurst Pub Schools ( 267 AD2d 411 [2d Dept 1999]) stands for the general proposition that a PLAINTIFF must be able to identify the area where she fell with particularity, but provides no further detail as to the manner in which the proof provided by PLAINTIFF in that case fell short. Therefore, it provides no points of comparison to the facts at bar. Also distinguishable is Thierens v. 520 E 21st St, LLC. (68 AD3d 851 [2d Dept 2009]), wherein plaintiff was unable to state on which step of a flight of stairs she fell, or what caused her to fall. Moreover, although she observed apple peels "on the floor"after the accident, she could not specify where on the staircase the apple peels were situated before her fall. In contrast, PLAINTIFF at bar has been able to specifically identify the site of her fall as being in front of the first house which she encountered on Behan Court (i.e., DEFENDANTS' premises ), and ultimately testified at both her General Municipal Law §50-h hearing and at her deposition that the cause of her fall was a stone on the sidewalk, similar in description to the stones concededly placed by DEFENDANTS over the adjacent grassy areas.

DEFENDANTS further contend that they had neither actual nor constructive notice of any dangerous condition which would have led to the PLAINTIFF'S fall, e.g., that they were neither aware, or should have been aware, of the existence of the stone on the sidewalk which PLAINTIFF alleges caused her to fall. DEFENDANTS argue that a "general awareness" that a condition may exist does not constitute sufficient notice to establish a question of fact as to PLAINTIFF'S claim.

To provide constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant... [ or its] employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). However, a party who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition (see Kohout v. Molloy Coll, 61 AD3d 640, 642 [2d Dept 2009] Sweeney v D & J Vending, 291 AD2d 443, 443-444 [ 2d Dept 2002]).

Here, a question of fact exists as to whether, e.g., DEFENDANTS created the condition which caused PLAINTIFF to fall, and whether they were chargeable with notice that such a condition was dangerous to passers-by. DEFENDANTS have admitted that they purposefully placed stones in the areas surrounding the sidewalk in front of their house in an effort to stunt the growth of weeds and to keep dogs away, as a result of which they must have been aware that the stones could become displaced onto the sidewalk. Evidence of this can be seen in their claim to have monitored same, and to have regularly swept the stones off the sidewalk and back into position. From the foregoing, it would be reasonable for a jury to infer that DEFENDANTS recognized that such stones might end up on the sidewalk, where they could constitute a dangerous condition.

In this respect, the case is similar to Batista v. KFC Nat'l Mgt Co. ( 21 AD3d 917 [2d Dept 2005]), where the denial of defendant's motion for summary judgment and dismissal of the complaint in another slip-and-fall case was affirmed. There, the Appellate Division held that a trier of fact could reasonably determine that defendant was aware of the recurring condition ( i.e., wood chips being displaced from defendant's premises onto the adjacent sidewalk), in view of the testimony of its manager that her daily inspections of the sidewalk would reveal the presence of such chips ( id. at 918). The court also found that plaintiff had adduced sufficient evidence to [*6]demonstrate (1) the probability that the wood chips emanated from defendant's property, and (2) that their presence may have constituted a hazardous situation which precipitated her fall ( id..)

Accordingly, it is

ORDERED that the motion for summary judgment by DEFENDANTS John Perrotta and Jennifer Franqui is denied.

E N T E R

Dated: April 7, 2014__/s/____________________

HON. THOMAS P. ALIOTTA

J.S.C.