                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 29, 2015                     518820
________________________________

MATTHEW E. FEUERHERM,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

JEFF D. GRODINSKY,
                    Respondent.
________________________________


Calendar Date:   November 14, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

                               __________


      O'Connor & Kruman, PC, Cortland (Randolph V. Kruman of
counsel), for appellant.

      Santacrose & Frary, Albany (James Lonano of counsel), for
respondent.

                               __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered July 11, 2013 in Cortland County, which granted
defendant's motion for summary judgment dismissing the complaint.

      At all times relevant, defendant, an out-of-possession
landlord, was the owner of certain rental property located at 78-
80 Groton Avenue in the City of Cortland, Cortland County. The
property in question was a three-story duplex, and the 80 Groton
Avenue portion of the premises housed seven bedrooms, including –
insofar as is relevant here – a third-floor bedroom facing the
rear of the premises. Access to a portion of the roof – an area
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measuring approximately 20 feet by 27 feet with a slope ranging
from 5.8% to 8% and an elevation of roughly 25 feet – could be
obtained by climbing through a small window in this rear-facing
bedroom.

       At some point prior to November 2, 2007, plaintiff moved
into 80 Groton Avenue and began occupying the bedroom in
question.1 After completing his shift at a local pizza parlor,
plaintiff went to a bar known as Hooley's, which was located
across the street from defendant's duplex, where he consumed a
combination of beer and liquor. Plaintiff left the bar at
approximately 3:00 a.m. on November 2, 2007 and, at approximately
7:45 a.m., was discovered lying on the ground in the backyard of
defendant's premises. Based upon the physical evidence observed
at the scene, it appeared that plaintiff had fallen from the
roof.2

      Plaintiff thereafter commenced this action against
defendant, alleging violations of Property Maintenance Code of
New York State §§ 304.1, 304.2, 304.10 and 304.12 (see generally
19 NYCRR 1226.1) and asserting that defendant failed to maintain
the premises in a reasonably safe condition. Following joinder
of issue and discovery, defendant moved for summary judgment
dismissing the complaint. Supreme Court granted defendant's
motion, and this appeal by plaintiff ensued.


     1
        The record contains conflicting proof as to when
plaintiff moved into 80 Groton Avenue. Plaintiff testified that
he moved in on November 1, 2007, while a written statement from
one of plaintiff's roommates indicated that plaintiff had moved
in "a few weeks" prior to that date. Plaintiff was not a
signatory to the lease governing the premises, and defendant
testified that he was unaware that plaintiff was residing there.
     2
        Plaintiff does not recall falling from the roof or the
events leading up thereto, and the accident apparently was
unwitnessed.
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      We affirm. To prevail on his motion for summary judgment,
defendant was required to demonstrate that he maintained his
property in a reasonably safe condition and that he neither
created nor had actual or constructive notice of the allegedly
dangerous condition existing thereon (see Dillenbeck v Shovelton,
114 AD3d 1125, 1126 [2014]; Rodriguez v Binghamton Hous. Auth.,
101 AD3d 1222, 1222 [2012]; Raczes v Horne, 68 AD3d 1521, 1522
[2009]). For purposes of a premises liability claim,
constructive notice "requires a showing that the condition was
visible and apparent and existed for a sufficient period of time
prior to the accident to permit defendant[] to discover it and
take corrective action" (Tate v Golub Props., Inc., 103 AD3d
1080, 1081 [2013] [internal quotation marks and citation
omitted]; see Ravida v Stuyvesant Plaza, Inc., 101 AD3d 1421,
1422 [2012]).

      In support of his motion, defendant tendered the affidavit
of a professional engineer, who opined that "the . . . roof area
located outside the third[-]floor bedroom of . . . 78-80 Groton
Avenue as constructed and maintained conformed with all
applicable building codes on November 2, 2007,"3 including the
code provisions relied upon by plaintiff (see Property
Maintenance Code of New York State §§ 304.1, 304.2, 304.10,
304.12), and, more to the point, that the roof "was reasonably
safe for its intended purpose and was not a dangerous condition."
The engineer further averred that, because the area in question


    3
        Although defendant's compliance with applicable code
provisions admittedly is not dispositive as to the issue of
whether he maintained the premises in a reasonably safe condition
(see Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872 [1995]; Cook v
Indian Brook Vil., Inc., 100 AD3d 1247, 1248 [2012]), we
nonetheless note that, as of April 2007, any building code
violations existing at the property had been corrected to the
satisfaction of the local code enforcement officer and, further,
that none of the cited violations pertained to or otherwise
implicated the roof area in question.
                              -4-                518820

was not being used for "living, sleeping, eating or cooking," the
applicable building codes did not require that "railings or
guards . . . be installed along the edge of the roof area." Such
proof, in our view, was sufficient to establish that protective
measures were not required on the subject roof (compare Trosa v
Di Cristo, 91 AD3d 944, 945 [2012] ["the defendant's submissions
failed to eliminate all triable issues of fact as to whether
handrails were statutorily required at the location where the
plaintiff fell"]; Wininger v Congregation Nechlas Meharim, 83
AD3d 827, 828 [2011] ["defendants failed to eliminate all triable
issues of fact as to whether the existing steps, handrail, and
door violated applicable statutory and code provisions"]) and
that defendant otherwise maintained his property in a reasonably
safe condition.

      Additionally, even assuming that a hazardous condition
indeed existed, nothing in the record suggests that defendant
created such condition or had actual or constructive notice
thereof. Defendant's predecessor in title, John Shannon, who
also served as one of defendant's local property managers,
described the "rubberized roof" as being in "very good shape"
when he purchased the property in 1995 or 1996, and defendant's
examination before trial testimony does not indicate that he made
any alterations or modifications to the roof after he purchased
the property in February 2007. Although both defendant and
Shannon testified that they did not take affirmative steps to
block access to the roof from the bedroom in question, Shannon
noted that had anyone attempted to barricade the only window in
that room, "the code officer would [have gone] bonkers" because
people would not have been able to get out in case of a fire.

      As to the issue of notice, Shannon testified that he "never
saw kids out on the roof" and that he otherwise was unaware of
such activity – either during the time that he owned the property
or thereafter. Although plaintiff and one of his roommates
testified that people would in fact "go out onto the roof to hang
out or smoke," neither of them indicated that defendant or any of
                              -5-                518820

his property managers were aware of this activity, and the record
is silent as to the frequency with which such activity occurred.
Shannon further testified that the property was configured in
such a way that, unless one went out onto the roof itself, one
"really [could not] get a view of it" for purposes of
ascertaining whether there was any evidence that tenants were
using that space. Finally, although three cigarette butts were
collected at the scene (apparently from the roof), the record is
otherwise devoid of proof that the roof was being used by
plaintiff or his roommates or that defendant was possessed of
sufficient facts to place him on notice of such activity. Under
these circumstances, Supreme Court properly granted defendant's
motion for summary judgment dismissing the complaint.

      Contrary to plaintiff's assertion, neither Powers v 31 E 31
LLC (24 NY3d 84 [2014]) nor Lesocovich v 180 Madison Ave. Corp.
(81 NY2d 982 [1993]) warrants a contrary result. In both
Lesocovich and Powers, the Court of Appeals found that reasonable
minds could differ as to whether the use of the roof in question
by the injured plaintiff was foreseeable – a conclusion that was
based, in large measure, upon factors not present here, i.e.,
lingering questions of fact as to whether the relevant building
codes or statutes required some sort of railing or parapet wall
around the perimeter of the roof, as well as record evidence
attesting to the obvious and frequent use of the roof for
recreational purposes. Specifically, in Powers, the tenant of
the apartment that the injured plaintiff was visiting at the time
of his fall testified that "he had stepped onto the [subject]
roof through [a] window [in his apartment] approximately 15 times
in the two months preceding the accident to smoke cigarettes and
that the previous tenant had often done the same" (Powers v 31 E
31 LLC, 24 NY3d at 95). According to this same tenant, "evidence
of this use was [plainly] visible because cigarette butts and
garbage littered the roof" (id.). Similarly, in Lesocovich,
access to the roof was accomplished through a bedroom window in
the tenant's apartment, and the tenant testified that, when she
took possession of the apartment, "the screen had been removed
                              -6-                518820

from the bedroom window and was lying on the roof, and cinder
blocks that might have been used as sitting stools were on the
roof" (Lesocovich v 180 Madison Ave. Corp., 81 NY2d at 983).
Such proof, combined with the tenant's testimony as to repairs
made to the roof by the landlord's agents, led the Court of
Appeals to conclude that reasonable minds could differ as to
"whether the defendant should have foreseen that tenants and
their guests would use the roof for recreational purposes" (id.
at 985).

      Here, however, the record is devoid of proof that the roof
in question was used by plaintiff or his roommates for a
sufficient period of time to place defendant on notice of such
activity and, in our view, is insufficient to raise a question of
fact as to whether plaintiff's use of the roof was foreseeable.
As noted previously, plaintiff had moved in – at best – a few
weeks prior to his accident, he had been out on the roof only a
few times before he fell and, unlike both Lesocovich and Powers,
there was scant evidence that the roof had been routinely and,
more to the point, visibly used for recreational purposes by
plaintiff or others. To our analysis, the mere fact that the
roof in question was accessible from the window in plaintiff's
bedroom is insufficient to raise a question of fact as to whether
plaintiff's use of that roof area was foreseeable. Accordingly,
Supreme Court's order is affirmed.

     Lahtinen, J.P., McCarthy and Devine, JJ., concur.
                        -7-                  518820

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
