Order, Supreme Court, Bronx Country (George D. Salerno, J.), entered on or about July 8, 2008, which, to the extent appealed from, granted the motion of defendants Laurel Development and Howard Lowentheil, Inc. for summary judgment dismissing the complaint as against them and the cross motion of the B & V defendants to dismiss the claim for punitive damages, and denied plaintiffs' cross motion to dismiss the affirmative defense of culpable conduct, unanimously modified, on the law, to the extent of granting plaintiffs' cross motion to dismiss the affirmative defense of all defendants and third-party defendants that any damages suffered by plaintiffs were caused in whole or in part by reason of the negligence, want of care, assumption of risk, or other culpable conduct on the part of plaintiff Richard Hauptner, denying summary judgment dismissal as against defendant Lowentheil, and reinstating the complaint as against Lowentheil, and otherwise affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Andrias, Nardelli, Catterson, DeGrasse, JJ.
The undisputed facts of this case are that on September 24, 2003, plaintiff, Richard Hauptner, was sitting on the rear deck of his house with his grandson when a 30' aluminum extension ladder fell from the wall against which it was leaning and knocked Hauptner unconscious into his pool. Hauptner was rescued by his grandson. A few hours later, Hauptner and his grandson found the ladder laying across the top of a brick wall that separates his backyard from a condominium complex that was under construction at the time. Plaintiff then chained the ladder to his fence.
It is further undisputed that the subject ladder belonged to a subcontractor, B & V Contracting Enterprises, which entered into a contract with the general contractor for carpentry work on the condominium development. The following day, B & V's general foreman told Louis Trojan, the general contractor's project manager, that the ladder fell onto Hauptner's property, and that Hauptner refused to return it. Trojan went to plaintiff's house and gave him insurance information whereupon plaintiff returned the ladder.
As result of the accident, Hauptner sustained numerous injuries and underwent orthopedic surgery on both knees and on his left shoulder. On January 27, 2004, Hauptner and his wife commenced this action against Laurel Development (Laurel), the owner of the condominium development, Howard Lowentheil, Inc. (Lowentheil), the general contractor, and B & V Contracting Enterprises and B & V Contracting Associates (B & V), the subcontractor. Plaintiffs sought compensatory and punitive damages for personal injuries, alleging defendants' negligence in permitting a dangerous condition to exist at the premises and failing to warn of the dangerous condition.
Defendants Laurel and Lowentheil joined issue on March 24, 2004 with general denials and affirmative defenses including plaintiff's comparative fault, and cross claims for contribution and indemnification against B & V. On June 10, 2004, B & V joined issue with general denials and affirmative defenses including plaintiff's culpable conduct and cross claims for contribution and indemnification against Laurel and Lowentheil.
Defendants Laurel and Lowentheil moved for summary judgment dismissing the complaint or in the alternative, indemnification on their cross claims. They asserted that they had neither created nor had notice of the unsecured ladder as a recurring or ongoing condition, and were therefore not liable. Defendant B & V cross-moved for summary judgment dismissing plaintiffs' punitive damage claim and opposed Laurel and Lowentheil's motion for indemnification on a common law indemnity claim. B & V argued that there was ample evidence to show that Laurel and Lowentheil had actual or constructive notice of the unsecured ladders. B & V also maintained that punitive damages should not be awarded in this contract claim because defendants' conduct did not satisfy "the very high threshold of moral culpability."
Plaintiff cross-moved to dismiss all the affirmative defenses of culpable conduct asserted by defendants because defendants failed to show how or in what manner plaintiff caused or in any way contributed to a ladder falling into his yard while he was sitting in his back yard. Plaintiff further alleged that punitive damages should be awarded because defendants' conduct transcended mere carelessness.
On July 8, 2008, the motion court granted summary judgment in favor of Laurel and Lowentheil, dismissing them from the action, dismissed plaintiff's punitive damage claim and denied plaintiff's cross motion for dismissal of the affirmative defense of plaintiff's culpable conduct. The court found that Laurel and Lowentheil satisfied their burden to show that "they neither created or caused the ladder to be left unsecured during the construction of the condominium units" and there was no evidence establishing that "the unsecured ladder was visible" or establishing "the period of time that the condition existed prior to the accident."
For the reasons set forth below, we find the motion court erred in granting summary judgment to Lowentheil, and in declining to dismiss the affirmative defense of plaintiff's culpable conduct.
It is well settled that in a premises related action, owners and general contractors may be held liable for injuries caused by a defective condition if it is demonstrated that the owner or general contractor created the condition or that it had actual or constructive notice of the condition for such a period of time, that, in the exercise of reasonable care, it should have corrected the problem (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 ).
"To 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's employees to discover and remedy it" (Gordon v ...