text:                           State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
  Decided and Entered: May 5, 2016                       521770
  ________________________________
  
  ERIC SCHEFFIELD et al.,
                      Appellants-
                      Respondents,
        v
  
  VESTAL PARKWAY PLAZA, LLC,
                      Respondent,             MEMORANDUM AND ORDER
        and
  
  BRRS ASSOCIATES et al.,
                      Respondents-
                      Appellants.
  ________________________________
  
  
  Calendar Date:   March 22, 2016
  
  Before:   Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ.
  
                               __________
  
  
        Law Office of Alfred Paniccia Jr., Binghamton (Alfred
  Paniccia Jr. of counsel), for appellants-respondents.
  
        Levene Gouldin & Thompson, LLP, Binghamton (Robert G.
  Bullis of counsel), for BRRS Associates and another, respondents-
  appellants.
  
        Barclay Damon LLP, Syracuse (Alan R. Peterman of counsel),
  for Vestal Parkway Plaza, LLC, respondent.
  
                               __________
  
  
  Garry, J.
  
        Appeal from an order of the Supreme Court (Tait, J.),
  entered May 11, 2015 in Broome County, which, among other things,
  granted a motion by defendant Vestal Parkway Plaza, LLC for
  summary judgment dismissing the complaint against it.
                                -2-                521770
  
        In 2007, plaintiff Eric Scheffield was injured when he fell
  on property in the Town of Vestal, Broome County owned by
  defendant Vestal Parkway Plaza, LLC (hereinafter Vestal).
  Scheffield's fall occurred in a grassy area adjoining the parking
  lot of a shopping plaza. The property is fronted by the Vestal
  Parkway, a four-lane highway. It formerly fronted Ozalid Road,
  which ran parallel to Vestal Parkway, and consisted of two
  adjoining parcels owned separately by defendants Parkway Plaza,
  LLC (hereinafter Parkway) and BRRS Associates. The parcel owned
  by BRRS was subject to an easement granted in 1984 to the New
  York Telephone Company for a small parcel near Ozalid Road,
  together with an unspecified right of ingress and egress. A
  communications vault was built on the easement parcel. Ozalid
  Road was used for access to this vault until the Town abandoned
  the road in 1995 and transferred title to BRRS and Parkway. In
  1996, BRRS conveyed its parcel to Parkway, which constructed the
  shopping plaza on the property, removed the paved surface of
  Ozalid Road, and replaced it with grass. In 2003, Parkway
  conveyed its interest in the property to Vestal.
  
        According to plaintiffs, after the removal of Ozalid Road,
  workers for Verizon – New York Telephone Company's successor –
  accessed the communications vault by parking in the shopping
  plaza parking lot near the easement parcel, stepping over a low
  railing and walking down a grassy slope that borders the parking
  lot. Scheffield was in the course of his employment with Verizon
  and was approaching the vault when he slipped and fell on the
  slope. He and his spouse, derivatively, commenced this
  negligence action alleging that BRRS, Parkway and Vestal caused
  his injuries by failing to maintain the property in a reasonably
  safe condition and by creating a dangerous condition. Supreme
  Court granted a motion by BRRS and Parkway to dismiss the
  complaint for failure to state a cause of action. Upon appeal,
  this Court affirmed the dismissal of the claim for failure to
  maintain the property, but reversed as to the claim based upon
  the creation of an alleged dangerous condition (102 AD3d 992,
  993-994 [2013]). In 2014, Vestal moved for summary judgment
  dismissing the complaint against it, and BRRS and Parkway also
  jointly did so; both motions asserted that plaintiffs could not
  establish that there was a dangerous condition or that defendants
  had notice of any such condition. The court denied the motion of
                                 -3-                521770
  
  BRRS and Parkway, but granted Vestal's motion. Plaintiffs appeal
  from the court's grant of summary judgment to Vestal, and BRRS
  and Parkway appeal from the denial of their motion for summary
  judgment dismissing the complaint.
  
        Scheffield had performed work within the easement parcel
  between 10 and 20 times in the three years before his accident,
  and approximately twice in the week before his fall. He had
  never previously had difficulty accessing the easement parcel,
  nor did he know of other Verizon employees who had experienced
  any problems. On prior occasions, he had stepped over the
  railing that surrounded the parking lot in various locations and
  had used various routes across the grassy slope to reach the
  parcel. On the day of the accident, Scheffield had made one trip
  from his parked van across the slope to the vault and back again
  without difficulty. After returning to the van to obtain some
  equipment, he stepped over the railing in a different place, and
  then noticed that this part of the slope was steeper than the
  location he had previously used. He stopped moving. Heavy rain
  was falling and, as he stood briefly on the wet grass – which he
  described as very slippery – he fell down the slope.
  
        As a general rule, "a landowner's liability for the
  condition of real property ceases when possession and control
  thereof is transferred" (Young v Hanson, 179 AD2d 978, 978-979
  [1992]; see Bittrolff v Ho's Dev. Corp., 77 NY2d 896, 898 [1991];
  Romel v Reale, 155 AD2d 747, 748 [1989]). As noted in our
  previous decision, there is an exception in certain limited
  circumstances when a former landowner "affirmatively created the
  dangerous condition" (Marrero v Marsico, 218 AD2d 226, 229
  [1996]; see 102 AD3d at 993).1   However, further development of
  
  
       1
          It bears noting that another narrow exception exists when
  the current owner has not had a reasonable time to discover and
  correct a dangerous condition that existed at the time of the
  conveyance (see Smith v Northern Lights Land Co., LLC, 80 AD3d
  964, 965 [2011]). That exception does not apply; this Court
  previously held that plaintiffs "failed to adequately set forth
  facts demonstrating that . . . Vestal did not have ample time to
  discover and address [any dangerous] condition" (102 AD3d at
                                -4-                521770
  
  the record reveals that this narrow exception does not apply to
  either of the property's former owners. There is no evidence
  that BRRS took any affirmative actions that created a dangerous
  condition. The record includes an affidavit by Marc Newman, a
  member of Parkway, averring unequivocally that BRRS had no
  involvement in the development and construction of the shopping
  plaza, which did not begin until after the property was conveyed
  to Parkway. Plaintiffs submitted no contrary evidence, and their
  unsupported conjecture that BRRS might have been involved in the
  early stages of planning before the conveyance "is pure
  speculation [that] cannot be used to defeat summary judgment"
  (Piluso v Bell Atl. Corp., 305 AD2d 68, 70 [2003]).
  
        As for Parkway, Supreme Court found issues of fact as to
  whether the construction of the shopping plaza created a
  dangerous condition. However, the analysis described in Marrero
  is narrow. It applies only when a former owner who is also
  acting as a construction contractor is alleged to have
  affirmatively created a dangerous condition (see Marrero v
  Marsico, 218 AD2d at 229). In such cases, the former owner's
  liability is not based upon its ownership, possession or control
  of property, but, rather, upon the "modern rule" that holds
  building and construction contractors whose negligence results in
  the creation of a dangerous condition liable for foreseeable
  injuries to third parties, even after the property owner has
  accepted the work (Church v Callanan Indus., 285 AD2d 16, 18-19
  [2001], affd 99 NY2d 104 [2002]; see Robertson v Amherst Paving,
  302 AD2d 913, 913 [2003]; Colonno v Executive I Assoc., 228 AD2d
  859, 860 [1996]).
  
        Here, there is no evidence that Parkway engaged in any
  negligent construction activities. Parkway acknowledges that the
  
  
  993), and a reasonable amount of time for such a condition to
  have been discovered has passed as a matter of law, in the 11
  years after the conveyance from BRRS and the four years after the
  conveyance from Parkway (see Turrisi v Ponderosa, Inc., 179 AD2d
  956, 958-959 [1992]; Levine v 465 W. End Ave. Assoc., 93 AD2d
  735, 735-736 [1983]; compare Young v Hanson, 179 AD2d 978, 979
  [1992]).
                                -5-                521770
  
  shopping plaza construction project included removing the
  pavement on Ozalid Road, regrading the roadbed, and replanting
  that area, but plaintiffs do not claim that any of this work was
  negligently performed or directly caused Scheffield's accident.
  Instead, they assert that the road's removal required Scheffield
  to use the grassy slope to reach the vault, and that the slope
  was either inherently unsafe because it was too steep in its
  natural form – which would not give rise to liability for
  affirmative creation of a dangerous condition – or became unsafe
  because Parkway regraded it and increased its steepness.
  However, Parkway demonstrated that the steepness of the slope was
  not changed, by submitting the affidavit of a project manager who
  asserted that the grassy slope existed before the shopping plaza
  was constructed, that it was not affected by the removal of
  Ozalid Road, and that its steepness was not altered. Plaintiffs
  submitted no contradictory evidence. Plaintiffs contend upon
  appeal that topographic maps reveal the perimeter of the parking
  lot at the top of the slope to be slightly higher following the
  construction of the shopping plaza. However, plaintiffs do not
  argue that the maps reveal a change in the steepness of the
  slope, as opposed to its height, and there is no clear causal
  connection. Moreover, this alleged height differential was not
  mentioned in the affidavit of plaintiffs' surveyor, and counsel's
  assertion does not constitute "proof in admissible form which
  would provide the necessary foundation" for any claim based upon
  a change in the slope's height (Patterson v Palmieri, 284 AD2d
  852, 853 [2001]; accord Bergstrom v McChesney, 92 AD3d 1125, 1126
  [2012]). Plaintiffs thus failed to establish the existence of
  issues of fact as to whether Parkway affirmatively created a
  dangerous condition (compare Middleton v Dovale, 4 AD3d 345, 346
  [2004]).2 For the reasons above, we find that summary judgment
  should have been granted in favor of BRRS and Parkway, the former
  property owners.
  
  
  
      2
          We note that it remains unclear whether Parkway had some
  role as a contractor. Parkway averred that it retained an
  engineering firm to design and supervise the project, but did not
  specifically state whether this firm or some other entity acted
  as the contractor.
                                -6-                521770
  
        As for Vestal, plaintiffs assert that the grassy slope
  constituted a dangerous condition that posed a hazard to Verizon
  employees seeking to access the easement parcel. Supreme Court
  granted summary judgment dismissing the complaint against Vestal
  based upon its determination that, as a servient owner, Vestal
  had no duty to repair or maintain access to the easement parcel.
  We agree that Vestal is entitled to summary judgment, but upon
  different grounds.3 Vestal was required to support its summary
  judgment motion with a showing "that it maintained the premises
  in a reasonably safe condition and that it did not create or have
  notice of any allegedly dangerous condition" (Barley v Robert J.
  Wilkins, Inc., 122 AD3d 1116, 1117 [2014]). Vestal demonstrated
  without contradiction that it did not create a dangerous
  condition; the undisputed record reveals that construction of the
  shopping plaza was complete before Vestal took ownership and that
  it made no changes in the area thereafter. Likewise, Vestal
  demonstrated that it had no actual notice of any dangerous
  condition. There had been no prior falls or accidents on the
  grassy slope, and neither Vestal nor the property's former owners
  received any complaints from Verizon about the slope's steepness
  or any other difficulty in accessing the easement parcel in the
  11 years during which its workers used this area. Accordingly,
  to be entitled to summary judgment, Vestal was required to
  demonstrate as a matter of law that it had no constructive notice
  of any defect that "was visible and apparent and [had] existed
  for a sufficient period of time prior to the accident to permit
  [Vestal] to discover it and take corrective action" (Tate v Golub
  Props., Inc., 103 AD3d 1080, 1081 [2013] [internal quotation
  marks and citation omitted]).
  
  
  
  
      3
          Defendants' motions did not address the question whether
  Vestal owed a duty as the servient owner to maintain the easement
  parcel or, more specifically, whether it shared the use of the
  easement parcel with Verizon and, thus, may have had shared
  maintenance responsibilities for that area (see Tagle v Jakob, 97
  NY2d 165, 169 [2001]). Thus, the parties did not have an
  opportunity to develop the record on the issue (see Jones v
  Castlerick, LLC, 128 AD3d 1153, 1154 [2015]).
                                -7-                521770
  
        As previously noted, Vestal had sufficient time to discover
  and address any existing defect in the property (102 AD3d at
  993). Nevertheless, absent any history of falls or complaints,
  we are unpersuaded that the mere fact that a naturally-formed
  grassy slope existed near the easement parcel was sufficient to
  raise issues of fact as to Vestal's constructive notice. The
  fact that the slope was slippery in rainy weather, without more,
  does not establish the existence of a dangerous condition (see
  Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2007]; Todt v
  Schroon Riv. Campsite, 281 AD2d 782, 783 [2001]). As for its
  steepness, photographs and topographic maps reveal a grass-
  covered slope in the area between the vault and the parking lot
  that varies in its grade, with some areas sloping more gradually
  than others. Scheffield testified that the pitch of the slope
  varied in different locations and described the parts of the
  slope that he had safely traversed before the accident as "fairly
  gradual." Plaintiffs' surveyor stated that the grade of the
  slope in the 75-foot-wide area bordering the parking lot ranged
  from a downward slope of approximately 25% in some areas to 49%
  in others; plaintiffs' engineer opined that the slope of 45% to
  49% in the area of Scheffield's accident exceeded the Industrial
  Code regulatory maximum for "earth ramps," but that a 25% slope
  was acceptable.
  
        There was no pathway leading across the slope to the
  easement parcel, and nothing to indicate which parts of the slope
  were used by Verizon's employees in gaining access to the
  easement parcel; instead, the entire area of the slope – along
  with the rest of Vestal's property surrounding the easement
  parcel – was generally subject to Verizon's unspecified right of
  ingress and egress. There is no record evidence that any Verizon
  employees other than Scheffield ever attempted to use the steeper
  section of the slope to reach the easement parcel, or that Vestal
  had any reason to anticipate that they might do so (compare
  Feuerherm v Grodinsky, 124 AD3d 1189, 1191-1192 [2015], lv denied
  25 NY3d 907 [2015]; see also Freese v Bedford, 112 AD3d 1280,
  1281 [2013]). Thus, we find that Vestal established on a prima
  facie basis that it had no constructive notice that a dangerous
  condition existed on its property and that plaintiffs did not
  establish the existence of triable issues of fact on this point.
  Accordingly, Supreme Court properly granted summary judgment
                                -8-                  521770
  
  dismissing the complaint against Vestal (see Decker   v Schildt,
  100 AD3d 1339, 1341-1342 [2012]; Raczes v Horne, 68   AD3d 1521,
  1522-1523 [2009]; Reid v Schalmont School Dist., 50   AD3d 1323,
  1324-1325 [2008]; compare Mazerbo v Murphy, 52 AD3d   1064, 1066-
  1067 [2008], appeal dismissed 11 NY3d 770 [2008]).
  
       Lahtinen, J.P., McCarthy and Mulvey, JJ., concur.
  
  
  
        ORDERED that the order is modified, on the law, without
  costs, by reversing so much thereof as denied the motion of
  defendants BRRS Associates and Parkway Plaza, LLC for summary
  judgment dismissing the complaint against them; motion granted
  and complaint dismissed against said defendants; and, as so
  modified, affirmed.
  
  
  
  
                               ENTER:
  
  
  
  
                               Robert D. Mayberger
                               Clerk of the Court
  