Clifford v. Woodlawn Volunteer Fire Company, Inc.
| Decision Date | 07 July 2006 |
| Docket Number | CA 05-02566. |
| Citation | 31 A.D.3d 1102,818 N.Y.S.2d 715,2006 NY Slip Op 05399 |
| Parties | MARGARET F. CLIFFORD et al., Appellants, v. WOODLAWN VOLUNTEER FIRE COMPANY, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered February 11, 2005 in a personal injury action. The order granted the motion and cross motion of defendants 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 denying the motion in part and reinstating the amended complaint against defendant Woodlawn Volunteer Fire Company, Inc. insofar as the amended complaint, as amplified by the bill of particulars, alleges that defendant Woodlawn Volunteer Fire Company, Inc. had constructive notice of the dangerous condition and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly sustained by Margaret F. Clifford (plaintiff) when she slipped and fell on a wet floor on premises owned by defendant Woodlawn Volunteer Fire Company, Inc. (Woodlawn) during a wedding reception catered by defendant J & M Catering Services, Inc. (J & M). Contrary to plaintiffs' contention, Supreme Court properly granted that part of the motion of Woodlawn for summary judgment dismissing the amended complaint against it insofar as the amended complaint, as amplified by the bill of particulars, alleges that Woodlawn created the dangerous condition or had actual notice of it. We agree with plaintiffs, however, that the court erred in granting that part of the motion of Woodlawn seeking summary judgment dismissing the amended complaint against it insofar as the amended complaint, as amplified by the bill of particulars, alleges that Woodlawn had constructive notice of the dangerous condition, and we therefore modify the order accordingly. Woodlawn, the owner of the premises, failed to meet its initial burden on the motion by establishing that it did not have constructive notice of the dangerous condition, i.e., it "`failed to establish as a matter of law that the condition . . . had not existed for a sufficient length of time before plaintiff's accident to permit employees of [Woodlawn] to discover and remedy it'" (Ranger v Byrne Dairy, 280 AD2d 946, 946 [2001], quoting Perrone v Ilion Main...
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...is predicated upon occupancy, ownership, control or a special use of [the] premises' ” ( Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715;see Knight v. Realty USA.COM, Inc., 96 A.D.3d 1443, 1444, 947 N.Y.S.2d 693). Thus, a tenant, i.e., one who both occu......
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...be held liable for injury caused by the defective or dangerous condition of the property’ " ( Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715 [4th Dept. 2006] ). "[W]hether a dangerous or defective condition exists on the property of another so as to cr......
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...on property is predicated upon occupancy, ownership, control or a special use of [the] premises' ” ( Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715). “ ‘The existence of one or more of these elements is sufficient to give rise to a duty of care[, but w......
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