Hopstock v Close

[*1] Hopstock v Close 2006 NY Slip Op 50984(U) [12 Misc 3d 1161(A)] Decided on May 23, 2006 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2006
Supreme Court, Richmond County

Ronald Hopstock, Plaintiff,

against

Edward Close and JOANNE CLOSE, Defendants.



013129/04

Judith N. McMahon, J.

On October 17, 2003, at approximately 7:30 p.m., the plaintiff slipped and fell on the walkway in front of 54 Bowling Green Place, Staten Island, New York. The plaintiff had resided in the basement apartment of the house for over five years. The defendants own the house. In October, 2004, the plaintiff commenced this action and issue was joined by the service of an answer by the defendants. After discovery was completed, the defendants moved for summary judgment dismissing the complaint.

In support of their motion, the defendants submitted the deposition testimony of the plaintiff and defendant Edward Close. The plaintiff testified that he tripped over a brick that separated the sidewalk from the lawn because the area was not well lit. The defendant testified that there is a street light located across the street from his house, that he installed eight solar lights which line the walkway and go on automatically when it gets dark, and he manually turns on the porch light and two spotlights on the roof when it gets dark. The defendant never had any problems with the lights and had never had any complaints about the illumination in the area where the accident occurred. Based on this testimony, the defendants argued that they did not create a defective condition and they did not have any notice of a defective condition.

In his opposition, the plaintiff contended that there was an issue of fact as to whether the [*2]lighting was adequate. The plaintiff relied upon his deposition testimony in which he testified that the solar lights were not on the night of the accident.

In their reply, the defendants assert that they had no duty to illuminate the exterior of their property. In any event, even if the solar lights were not on, the area was still well lit as the street light, porch light and roof lights were on.

The defendants established a prima facie showing of entitlement to summary judgment by submitting evidence in admissible form that they maintained their premises in a reasonably safe condition and they did not have actual or constructive notice of the alleged defect or that they did not create the allegedly hazardous condition (see, Danielson v. Jameco Operating Co., 20 AD3d 446 [2d Dept. 2005]; Kyung Sook Park v. Caesar Chemists, 245 AD2d 425 [2d Dept. 1998]). In opposition, the plaintiff relied upon his testimony that the solar lights were not on. But at his deposition the plaintiff admitted both that the street light was on and that he could not remember if the porch or roof lights were on. Thus, he failed to raise a triable issue of fact to rebut the defendants' showing that they neither created nor had notice of the alleged inadequate lighting condition (see, Resto v. 798 Realty, LLC, ____AD3d___, 2006 WL 1097858 [1st Dept. April 27, 2006]; Arias v. St. Rosalia's Roman Catholic Church, 286 AD2d 311 [2d Dept. 2001]). Accordingly, it is

ORDERED that the defendants' motion for summary judgment is granted and the complaint is dismissed; and it is further,

ORDERED that the Clerk is directed to enter judgment accordingly.

E N T E R,

Dated: May 23, 2006

J.S.C.