Bradish v. Tank Tech Corp.

• Decision Date: 26 June 1995
• Citation: 216 A.D.2d 505,628 N.Y.S.2d 807
• Parties: Matthew R. BRADISH, et al., Appellants, v. TANK TECH CORP., Defendant Third-Party Plaintiff-Respondent; Heritage Development Group, Inc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 807

628 N.Y.S.2d 807

216 A.D.2d 505

Matthew R. BRADISH, et al., Appellants, v. TANK TECH CORP., Defendant Third-Party Plaintiff-Respondent Heritage Development Group, Inc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

June 26, 1995.

Birbrower, Montalbano, Condon & Frank, P.C., New City (Valerie J. Crown, of counsel), for appellants.

Molod & Berkowitz, P.C., New York City (Frederick M. Molod, Marcy Sonneborn, and Andrew M. Harrison, on the brief), for defendant third-party plaintiff-respondent.

Raymond C. Green, New York City (Robert A. Lubitz, of counsel; Geoffrey Eberle, on the brief), for third-party defendant-respondent.

Before THOMPSON, J.P., and PIZZUTO, SANTUCCI and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Rockland County (Miller, J.), dated January 14, 1994, which, inter alia, granted the motion of the defendant for summary judgment dismissing the complaint, and (2) a judgment of the same court entered March 1, 1994, which, inter alia, dismissed the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].

While engaged in his duties as construction superintendent for Heritage Development Group, Inc. (hereinafter Heritage), the plaintiff Matthew Bradish was injured when he slipped in a puddle of oil and fell on a concrete floor. Just before he fell, Bradish heard a clanking noise and saw a can owned by Heritage on the floor with oil pouring out. The defendant Tank Tech Corp. (hereinafter Tank Tech) was engaged as an independent contractor to perform tests on underground oil tanks about 50 feet away from the premises. An extension cord owned by Heritage was plugged into an outlet above a workbench, and extension cords belonging to Tank Tech were plugged into that extension cord to power its instruments. The plaintiffs' theory of liability is that someone tripped on or pulled the extension cord owned by Heritage causing a can of oil which had been on the workbench to fall to the floor.

To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (see, Gaeta v. City of New York, 213 A.D.2d 509, 624 N.Y.S.2d 47; Pirillo v. Longwood Assocs., 179 A.D.2d 744 579 N.Y.S.2d 120). Cases grounded on circumstantial evidence require a showing...