Drake v. Sagbolt, LLC

• Decision Date: 12 December 2013
• Citation: 2013 N.Y. Slip Op. 08330,977 N.Y.S.2d 131,112 A.D.3d 1132
• Parties: Barbara B. DRAKE, Respondent, v. SAGBOLT, LLC, Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1132
977 N.Y.S.2d 131
2013 N.Y. Slip Op. 08330

Barbara B. DRAKE, Respondent,
v.
SAGBOLT, LLC, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 12, 2013.

[977 N.Y.S.2d 133]

Gallo Vitucci Klar, LLP, New York City (Daniel P. Mevorach of counsel), for appellant.

D'Orazio Peterson, LLP, Saratoga Springs (Giovanna A. D'Orazio of counsel), for respondent.

Before: ROSE, J.P., STEIN, SPAIN and GARRY, JJ.

STEIN, J.

Appeal from an order of the Supreme Court (Krogmann, J.), entered January 30, 2013 in Warren County, which denied defendant's motion for summary judgment dismissing the complaint.

On the evening of January 25, 2010, plaintiff fell while walking with her dogs on an icy walkway at the Sagamore Resort in Bolton Landing, Warren County. ¹ As a result of the injuries she sustained, plaintiff commenced this action alleging, among other things, that defendant—the owner of the resort—negligently maintained the premises. After joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion and, upon defendant's appeal, we affirm.

Turning first to the issue of duty, it is well settled that “a landowner has a duty to exercise reasonable care in maintaining his [or her] own property in a reasonably safe condition under the circumstances” (Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636, 781 N.Y.S.2d 249, 814 N.E.2d 419 [2004] ). The nature and scope of a landowner's duty and the persons to whom such duty is owed are determined by consideration of, among other things, “the likelihood of injury to another from a dangerous condition on the property, ... the burden of avoiding the risk [as well as] the foreseeability of a potential plaintiff's presence on the property” ( id.; see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976]; Rossal–Daub v. Walter, 97 A.D.3d 1006, 1007, 948 N.Y.S.2d 765 [2012]; Taylor v. Lands End Realty Corp., 93 A.D.3d 1062, 1063, 941 N.Y.S.2d 293 [2012]; see also Salim v. Western Regional Off–Track Betting Corp., Batavia Downs, 100 A.D.3d 1370, 1371, 954 N.Y.S.2d 791 [2012]; Hendrickson v. Ryan, 262 A.D.2d 930, 930, 692 N.Y.S.2d 519 [1999] ). “Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally” (Tagle v. Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001]; see

[977 N.Y.S.2d 134]

Rossal–Daub v. Walter, 97 A.D.3d at 1007, 948 N.Y.S.2d 765; Marsh v. Marsh, 45 A.D.3d 1100, 1101, 845 N.Y.S.2d 551 [2007] ).

In order to satisfy its burden on summary judgment, defendant was required to present evidence conclusively establishing that its duty to use reasonable care did not extend to plaintiff. We reject defendant's argument that it was not required to maintain the walkway on which plaintiff fell because the resort was closed to the public during the winter months. It is undisputed that there was no gate or other apparatus blocking the public's access to the resort and, apart from a sign posted on the main hotel door, there was no notice that either the resort, generally, or the subject walkway, in particular, was closed to the public at the time of plaintiff's accident. Significantly, the condominiums located on the resort property were accessible year-round, with no limitation on visitors. It is also uncontroverted that defendant did not inspect the walkway in question. In our view, defendant failed to establish as a matter of law that plaintiff's use of the path was not reasonably foreseeable ( see Perrelli v. Orlow, 273 A.D.2d 533, 534–535, 708 N.Y.S.2d 742 [2000]; compare Elwood v. Alpha Sigma Phi, Iota Ch. of Alpha Sigma Phi Fraternity, Inc., 62 A.D.3d 1074, 1076, 878 N.Y.S.2d 499 [2009], lv. denied13 N.Y.3d 711, 893 N.Y.S.2d 511, 921 N.E.2d 203 [2009] ) and failed to meet its threshold burden of establishing that it did not owe a duty to plaintiff under the circumstances present here.

Even if defendant had met its initial burden on the issue of duty, plaintiff raised triable questions of fact in opposition. For example, according to one condominium owner, defendant did not inform the owners that the premises—other than the hotel building—were closed during the winter months. In addition, according to plaintiff, the path on which she fell was covered with footprints in the snow, suggesting that an inspection of the walkway would have revealed that it was being used by either condominium owners and/or members of the public. Triable issues of fact also exist as to whether the main road was a suitable alternative path, based on plaintiff's testimony...