Majority
p. 1009Gladys Whyte, Appellant, v Sheila M. Whyte, Respondent. [689 NYS2d 894]
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
p. 1010
of 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.
Cases cited
- Lowrey v. Cumberland Farms, Inc. 162 AD2d 777 at 778 p. 1010
- Hourigan v. McGarry 106 AD2d 845 p. 1010