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 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 A.D.2d 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 A.D.2d 845, appeal dismissed 65 N.Y.2d 637).

Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.