Rhodes v. Thomas , 821 N.Y.S.2d 543 ( 2006 )

Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered October 19, 2005 in a personal injury action. The order denied defendants’ motion for summary judgment dismissing the amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the amended complaint insofar as the amended complaint, as amplified by the bill of particulars, alleges that defendants created the dangerous condition and as modified the order is affirmed without costs.

Memorandum: Plaintiff, the tenant in the downstairs apartment of a two-family house owned by defendants, commenced this action seeking damages for injuries allegedly caused by mold that was present in the basement. We conclude that Supreme Court erred in denying in its entirety defendants’ motion seeking summary judgment dismissing the amended complaint. Defendants met their initial burden on the motion by establishing that they did not create the dangerous condition and that they lacked actual or constructive notice of it, and plaintiff raised an issue of fact only with respect to whether defendants had actual or constructive notice of the dangerous condition (see generally Faber v Emerling, 31 AD3d 1120 [2006]). We therefore modify the order accordingly. Present— Hurlbutt, J.P., Scudder, Gorski and Green, JJ.