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

694
CA 12-00183
PRESENT: FAHEY, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


BARBARA ANDERSON AND DAN FAULKNER,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

RAY JUSTICE, ET AL., DEFENDANTS,
AND STEVE EZARD, DEFENDANT-APPELLANT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (MATTHEW
A. LENHARD OF COUNSEL), FOR DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., ROCHESTER (NICHOLAS B. DAVIS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Livingston County
(Thomas M. Van Strydonck, J.), entered August 19, 2011 in a personal
injury action. The order, insofar as appealed from, denied that part
of the motion of defendants for summary judgment dismissing the
complaint against defendant Steve Ezard.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, defendants’ motion is
granted in its entirety, and the complaint is dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries they allegedly sustained when they fell through a dock owned
by Steve Ezard (defendant). Defendants moved for summary judgment
dismissing the complaint on the ground that, inter alia, defendant did
not have actual or constructive notice of any defective or dangerous
condition of the dock. We agree with defendant that Supreme Court
erred in denying that part of the motion dismissing the complaint
against him, and we therefore reverse the order insofar as appealed
from, grant the motion in its entirety and dismiss the complaint.
Defendant met his initial burden of establishing that he neither
created nor had actual or constructive notice of the allegedly
dangerous or defective condition of the dock, and plaintiffs failed to
raise a triable issue of fact in opposition (see generally King v
Sam’s E., Inc., 81 AD3d 1414, 1414-1415).

     It is well established that, “[t]o constitute 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[]
. . . to discover and remedy it” (Gordon v American Museum of Natural
History, 67 NY2d 836, 837). Here, defendant met his initial burden of
                                 -2-                           694
                                                         CA 12-00183

establishing that he lacked constructive notice of any defective or
dangerous condition with respect to the dock by submitting, inter
alia, his deposition testimony and an affidavit in which he averred
that he inspected the dock every spring when he placed it in the
water, that he and his family regularly used the dock and that they
encountered no problems with the dock prior to plaintiffs’ accident.
Defendant also submitted plaintiffs’ bill of particulars in which they
alleged that the defect in the dock was “latent,” thus acknowledging
that the defect was not “visible and apparent” (id.), as well as
plaintiffs’ deposition testimony in which they testified that they
observed no problems with the dock before the accident.

     In opposition to the motion, plaintiffs alleged that there were
questions of fact concerning the reasonableness of defendant’s
inspections of the dock and whether such inspections would have
disclosed the alleged defect that caused the dock to collapse. “The
duty of landowners to inspect their property is measured by a standard
of reasonableness under the circumstances” (Pommerenck v Nason, 79
AD3d 1716, 1717; see Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500,
501, lv denied 9 NY3d 809; Weller v Colleges of the Senecas, 217 AD2d
280, 285). “Where . . . there is nothing to arouse the [property
owner’s] suspicion, he [or she] has no duty to inspect” (Appleby v
Webb, 186 AD2d 1078, 1079; see Scoppettone v ADJ Holding Corp., 41
AD3d 693, 695). Here, as noted above, defendant inspected the dock
prior to placing it in the water each year, used the dock regularly
without incident and received no complaints from his neighbors,
including plaintiff Barbara Anderson, who likewise routinely used the
dock without incident. Further, there is no evidence in the record
that the dock showed signs of deterioration, such as rusted nails,
rotted or discolored wood or corroded metal (cf. Serna v 898 Corp., 90
AD3d 560, 560; Babcock v County of Albany, 85 AD3d 1425, 1426-1427;
Oates v Iacovelli, 80 AD3d 1059, 1060-1061). Under the circumstances
of this case, we conclude that it was reasonable for defendant to
conduct a pre-season inspection of the dock and thereafter to rely
upon personal observations and any complaints to determine whether
further inspection or maintenance was required (see generally Gover v
Mastic Beach Prop. Owners Assn., 57 AD3d 729, 731). Thus, plaintiffs
failed to raise a triable issue of fact concerning defendant’s
constructive notice of the alleged dangerous or defective condition of
the dock.

     We reject plaintiffs’ alternative contention that notice to
defendant was not required because the doctrine of res ipsa loquitur
applies. That doctrine “does not apply here because, inter alia,
defendant was not in exclusive control of the instrumentality that
allegedly caused plaintiff[s’] injuries,” i.e., the dock (Moore v
Ortolano, 78 AD3d 1652, 1653; see Warren v Ellis, 61 AD3d 1351,
1352-1353). Indeed, Anderson testified at her deposition that the
dock was a “community dock” and that she regularly used the dock to
enter the lake from the right-of-way shared by defendant, Anderson and
other neighboring property owners.
Entered: June 8, 2012                           Frances E. Cafarell
                                                Clerk of the Court
