        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

596
CA 16-01967
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


RONALD HANSFORD, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL WELLSBY AND WENDY WELLSBY,
DEFENDANTS-RESPONDENTS.


SPADAFORA & VERRASTRO, LLP, BUFFALO (RICHARD E. UPDEGROVE OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ANDREW D. DRILLING OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), dated February 22, 2016. The order denied the motion of
plaintiff for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when he fell while stepping down from
a porch on property owned by defendants. The porch was approximately
13 inches off the ground, and there were two concrete blocks that were
placed next to the porch to act as steps. At his deposition,
plaintiff testified that, when he stepped on one of the concrete
blocks, it broke and caused him to lose his balance and fall.

     Supreme Court properly denied plaintiff’s motion seeking summary
judgment on the issues of negligence and proximate cause. “A
landowner has a duty to maintain its property in a reasonably safe
condition in view of all the circumstances, including the likelihood
of injury to third parties, the potential seriousness of the injury
and the burden of avoiding the risk” (Boderick v R.Y. Mgt. Co., Inc.,
71 AD3d 144, 147; see Basso v Miller, 40 NY2d 233, 241). To establish
his entitlement to summary judgment, plaintiff had to establish as a
matter of law that defendants created the defective condition or had
actual or constructive notice of it (see Del Carmen Cuque v Amin, 125
AD3d 1490, 1491; Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1318;
see also Gaffney v Norampac Indus., Inc., 109 AD3d 1210, 1211). In
addition, plaintiff also had to establish “that the defendant’s
negligence was a proximate cause of the injuries. To do so, the
negligence must be a substantial cause of the events which produced
the injury” (Boderick, 71 AD3d at 147, citing Derdiarian v Felix
                                 -2-                              596
                                                            CA 16-01967

Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784,
reconsideration denied 52 NY2d 829).

     In support of the motion, plaintiff established that the stairs
were in violation of the building codes, which constitutes some
evidence of negligence (see Morreale v Froelich, 125 AD3d 1280, 1281;
Brigandi v Piechowicz, 13 AD3d 1105, 1106). However, although the
broken block constituted a dangerous condition, plaintiff did not
establish as a matter of law that defendants created that dangerous
condition or had actual or constructive notice of it (see Del Carmen
Cuque, 125 AD3d at 1491). Furthermore, plaintiff failed to establish
as a matter of law that the violation of the building codes
proximately caused the accident (see generally Morreale, 125 AD3d at
1281-1282; Brigandi, 13 AD3d at 1106).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
