                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 22, 2015                    520417
________________________________

FAYE M. MURPHY,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

HOMETOWN REAL ESTATE et al.,
                    Respondents.
________________________________


Calendar Date:    September 18, 2015

Before:   Garry, J.P., Rose, Lynch and Devine, JJ.

                              __________


      Law Office of Steven P. Shultz, Gansevoort (Steven P.
Shultz of counsel), for appellant.

      Muller Mannix & Reichenbach, PLLC, Glens Falls (Daniel J.
Mannix of counsel), for Hometown Real Estate and another,
respondents.

      Santacrose & Frary, Albany (Patrick D. Slade of counsel),
for Jeffrey Hiscox, respondent.

                              __________


Devine, J.

      Appeal from an order of the Supreme Court (Krogmann, J.),
entered May 14, 2014 in Warren County, which granted defendants'
motions for summary judgment dismissing the complaint.

      Plaintiff rented an apartment in a building owned by
defendant Jeffrey Hiscox and managed on behalf of defendant
Hometown Real Estate by defendant Andrew Martin. The building
has an exterior back porch accessible from the first floor
apartments and, in October 2011, plaintiff slipped and fell on
steps leading down from it. Plaintiff then commenced this
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premises liability action, alleging that her fall was caused by a
slippery green substance on the porch that could and should have
been addressed by defendants. Following joinder of issue and
discovery, Hometown and Martin moved for summary judgment
dismissing the complaint, and Hiscox separately moved for the
same relief. Supreme Court granted the motions. Plaintiff now
appeals, and we reverse.

      Plaintiff was required by the lease to "properly care for
the" porch area by keeping it clear of debris and snow, but it is
doubtful that her limited duties in that regard absolved
defendants of their general responsibility to maintain a
seemingly common area accessible by other tenants (see Hamelin v
Town of Chateaugay, 100 AD3d 1330, 1331 [2012]; Wynn v T.R.I.P.
Redevelopment Assoc., 296 AD2d 176, 179 [2002]). Moreover, even
assuming that the porch was not a common area, defendants
reserved the right to enter the premises leased by plaintiff for
inspection and repair purposes and, as such, may be held "liable
for failure to repair a dangerous condition" therein if they were
on notice of it (Chapman v Silber, 97 NY2d 9, 19 [2001]; see
Pomeroy v Gelber, 117 AD3d 1161, 1162 [2014]). Defendants
accordingly must, in order to succeed upon their motions for
summary judgment, "demonstrate that [they] 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" (Epps v
Bibicoff, 124 AD3d 1100, 1101 [2015] [internal quotation marks
and citation omitted]; see Decker v Schildt, 100 AD3d 1339, 1340
[2012]).

      Here, Martin and Hiscox were both aware that there was
"green slime" on the porch around the time that plaintiff rented
the apartment in May 2011. Hiscox authorized Martin to hire a
contractor to clean the porch, which was done, and Martin stated
that he did not observe the substance on his subsequent visits to
the property. Martin and Hiscox, moreover, both denied receiving
any complaints about the condition of the porch after that time.
Given this prima facie showing that the condition had been
resolved and that defendants lacked actual or constructive notice
of a continuing risk, plaintiff became obliged to come forward
with proof that a "recurring dangerous condition existed in the
                              -3-                520417

area of the accident which was routinely left unaddressed by"
defendants (O'Connor-Miele v Barhite & Holzinger, 234 AD2d 106,
106-107 [1996]; see Raczes v Horne, 68 AD3d 1521, 1522 [2009]).

      Viewing the evidence in the light most favorable to
plaintiff as the nonmoving party (see Anderson v Skidmore Coll.,
94 AD3d 1203, 1204 [2012]), she met that burden. Plaintiff
averred that the green substance had persisted after the porch
was cleaned, that it was slippery when wet and that her repeated
demands for Martin to fix the problem went unaddressed. Those
assertions were corroborated by the affidavit and deposition
testimony of caseworker Allison Sullivan, who had assisted
plaintiff with her living arrangements and had also attempted to
raise the issue with Martin. Plaintiff further submitted
photographs of the area that show the substance on portions of
the porch – albeit not on the steps themselves – and stated that
she fell after "pick[ing] up" the substance on her shoes as she
walked across the porch. While plaintiff's affidavit was clearer
than her opaque deposition testimony in explaining the exact
mechanism of her fall, the two are not contradictory, and
whatever discrepancies exist between them raised credibility
questions that cannot be answered in the summary judgment context
(see e.g. Coyle v Bommarito, 106 AD3d 1324, 1326-1327 [2013]).
Thus, because plaintiff provided more than "mere speculation" to
suggest that defendants had actual or constructive notice of the
condition that caused her fall, the motions for summary judgment
should have been denied (Timmins v Benjamin, 77 AD3d 1254, 1256
[2010]; see Macri v Smith, 12 AD3d 896, 897-898 [2004]; cf.
Decker v Schildt, 100 AD3d at 1341).

      The alternate grounds for affirmance advanced by
defendants, to the extent they are properly before us, have been
examined and found to be lacking in merit.

     Garry, J.P., Rose and Lynch, JJ., concur.
                              -4-                  520417

      ORDERED that the order is reversed, on the law, with costs,
and motions denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
