Whyte v. Whyte

Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. To impose liability on a landowner, a plaintiff must establish the existence 1010 of a dangerous or defective condition and that the owner either created the condition or had actual or constructive notice of it (see, Lowrey v Cumberland Farms, 162 AD2d 777, 778). Here, questions of fact exist whether the excessive vegetation growing out of the crack in the step on defendant’s property constituted a dangerous or defective condition and whether defendant had actual or constructive notice of the condition. Summary judgment was therefore precluded (see generally, Hourigan v McGarry, 106 AD2d 845, appeal dismissed 65 NY2d 637). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.