DeMilio v. DeMilio

• Decision Date: 01 June 1965
• Parties: Eleanor Ann DeMILLIO and Anthony P. DeMilio, Jr., Respondents, v. Anthony P. DeMILIO, Sr., and Sarah DeMilio, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 254

260 N.Y.S.2d 254

24 A.D.2d 447

Eleanor Ann DeMILLIO and Anthony P. DeMilio, Jr., Respondents, v. Anthony P. DeMILIO, Sr., and Sarah DeMilio, Appellants.

Supreme Court, Appellate Division, Second Department.

June 1, 1965.

James E. Carroll, Jr., Poughkeepsie, for appellant; Henry J. Smith, White Plains, of counsel.

Phillips, Heaney & Schofield, Beacon, for respondent; Julius S. Boccia, Beacon, of counsel.

Before BELDOCK, P. J., and UGHETTA, HILL, RABIN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action by the female plaintiff to recover damages for personal injury sustained by her when she fell on a stairway in the defendants' home, and by her husband to recover damages for medical expenses and loss of services, the defendants appeal from a judgment of the Supreme Court, Dutchess County, entered November 6, 1964 after trial, upon a jury's verdict in the plaintiffs' favor.

Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event.

At the time of the accident, the female plaintiff was a social guest in defendants' home. With her infant child in her arms, she was descending the stairway leading to the basement where dinner was to be served by her hosts, the defendants.

Of course, as a social visitor she took the premises as she found them, and defendants were obliged only: (1) to disclose dangerous defects known to them and not likely to be discovered by her; and (2) to refrain from inflicting intentional, wanton or willful injury upon her (Krause v. Alper, 4 N.Y.2d 518, 176 N.Y.S.2d 349, 151 N.E.2d 895; Cesario v. Chiapparine, 21 A.D.2d 272, 276-277, 250 N.Y.S.2d 584, 588, 589; Zalak v. Carroll, 20 App.Div.2d 823, 248 N.Y.S.2d 762; reversed on other grounds 15 N.Y.2d 753, 257 N.Y.S.2d 177, 205 N.E.2d 313; Schlaks v. Schlaks, 17 A.D.2d 153, 155, 232 N.Y.S.2d 814, 816; Fauci v. Milano, 15 A.D.2d 939, 225 N.Y.S.2d 888, affd. 12 N.Y.2d 926, 238 N.Y.S.2d 313, 188 N.E.2d 525).

Here, the proof disclosed only that the female plaintiff was caused to fall by a hole or other defect in the rubber mat on the stairway; that the mats were old, worn out and 'chewed away'; and that there was no guard rail or hand rail. There was no evidence as to the size of the hole or as to the extent of the mat's deterioration or as to the length of time the deteriorated condition may have existed. Such evidence would have been relevant to show that defendants must have been aware, especially in the absence of...