Castellitto v. Atlantic & Pacific Co.
| Decision Date | 10 November 1997 |
| Court | New York Supreme Court — Appellate Division |
| Parties | , 1997 N.Y. Slip Op. 9478 Theresa CASTELLITTO, Appellant, v. ATLANTIC & PACIFIC COMPANY, Respondent. |
Joseph A. Maria, P.C., White Plains (Gregg D. Minkin, of counsel), for appellant.
Boeggeman, George, Hodges & Corde, P.C., White Plains (John J. Walsh, of counsel), for respondent.
Before MANGANO, P.J., and COPERTINO, JOY, FLORIO and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered December 9, 1996, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) an order of the same court, entered February 6, 1997, which denied her motion, denominated as one for leave to "renew and reargue" the prior motion for summary judgment, but which was, in effect, solely for leave to reargue.
ORDERED that the defendant is awarded one bill of costs.
The plaintiff fell when her foot became "stuck on something" on the ground of a parking lot owned by the defendant. The plaintiff did not observe any defect on the parking lot property before or after her fall, which rendered her "practically unconscious".
In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon its property, it must be established that a defective condition existed, and that the landowner either affirmatively created the condition, or had actual or constructive notice of its existence (see, Kuchman v. Olympia & York, USA, 238 A.D.2d 381, 656 N.Y.S.2d 323). The Supreme Court was correct in granting summary judgment to the defendant, since there was no evidentiary proof in admissible form sufficient to raise a material issue of fact that the plaintiff fell as a result of a defective condition on the defendant's property (see, Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967, 525 N.Y.S.2d 793, 520 N.E.2d 512; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
The plaintiff's motion, denominated as one to "renew and reargue", was, in effect, a motion to reargue, since the...
To continue reading
Request your trial
-
Fandy Corp. v. Lung-Fong Chen
...236 A.D.2d 392, 653 N.Y.S.2d 631; see also, Hopkins v. City of New York, 248 A.D.2d 441, 669 N.Y.S.2d 667; Castellitto v. Atlantic & Pac. Co., 244 A.D.2d 379, 664 N.Y.S.2d 97). ...
-
Laventure v. McKay
...upon his or her property, it must be established, inter alia, that a defective condition existed (see, Castellitto v. Atlantic & Pac. Co., 244 A.D.2d 379, 380, 664 N.Y.S.2d 97; Thomas v. Phillips, 246 A.D.2d 531, 667 N.Y.S.2d 414). In the instant case, the defendant Landis McKay established......
-
Tresgallo v. Danic LLC
...the jury would have been required to speculate as to the cause of her accident (see, Robinson v Lupo, 261 A.D.2d 525; Castellitto v Atlantic & Pac. Co., 244 A.D.2d 379; Kuchman v Olympia & York, 238 A.D.2d 381). The Supreme Court also correctly concluded, as a matter of law, that the presen......
-
Roman v. Konis
...denying the motion is not appealable (see, Ackermann v. Town of Riverhead, 245 A.D.2d 404, 666 N.Y.S.2d 471; Castellitto v. Atlantic & Pac. Co., 244 A.D.2d 379, 664 N.Y.S.2d 97; Guigui v. Bonnie Castle Resort, 239 A.D.2d 315, 657 N.Y.S.2d ...