Epps v. Bibicoff

Appeal from an order of the Supreme Court (Buchanan, J.), entered July 12, 2013 in Schenectady County, which granted defendants’ motion for summary judgment dismissing the complaint.

In September 2009, plaintiff was in an alleyway between defendants’ rental property and his residence when a slate tile from defendants’ roof allegedly fell and struck him on his right

A defendant landowner moving for summary judgment in a premises liability action is required to demonstrate that he or she “maintained the property in question in a reasonably safe condition and . . . neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof’ (Godfrey v Town of Hurley, 68 AD3d 1527 , 1527 [2009] [internal quotation marks and citation omitted]; see Carter v State of New York, 119 AD3d 1198 ,1199 [2014]; Scherer v Golub Corp., 101 AD3d 1286 , 1287 [2012]). Here, in support of their motion, defendants established that they purchased the residence as an investment property approximately six months before the incident. In conjunction therewith, defendant David Bibicoff conducted a visual inspection of the exterior of the property and did not observe any problems with the condition of the roof. Bibicoff testified that he was not aware of any code violations that needed to be remedied and he received certificates of occupancy for the two rental units in the building after doing some interior repairs. He further testified that he would visit the property monthly to collect rent from the tenants, during which visits he would check on the property, and that, between the time of defendants’ purchase of the property and plaintiffs incident, no complaints were received from the tenants or any other individuals regarding the condition of the roof.

Plaintiff, who had lived in the neighboring residence for several years, testified that, prior to the incident, he had never seen slate tiles hanging off of the roof of defendants’ property or on the ground of the alleyway between the two buildings; accordingly, he never notified defendants or anyone else of any such tiles. Plaintiff further testified that the slate tile that hit his shoulder was the only piece of slate in the alleyway on the day of his accident. This evidence was sufficient to establish that defendants maintained the premises in a reasonably safe condition and did not create or have notice of the allegedly dangerous condition (see Decker v Schildt, 100 AD3d 1339 , 1340 [2012]; Fontanelli v Price Chopper Operating Co., Inc., 89 AD3d 1176 , 1177 [2011]; Raczes v Horne, 68 AD3d 1521 , 1522 [2009]; Olsen v Martin, 32 AD3d 625 , 626 [2006]; compare Dufrain v Hutchings, 112 AD3d 1212 , 1213 [2013]), thus shifting the burden to plaintiff to raise a triable issue of fact.

Rose, Egan Jr. and Lynch, JJ., concur.

Ordered that the order is affirmed, with costs.