Ellers v. Horwitz Family Limited Partnership

• Decision Date: 30 January 2007
• Docket Number: 2005-05305.,2005-06417.
• Citation: 36 A.D.3d 849,831 N.Y.S.2d 417,2007 NY Slip Op 00599
• Court: New York Supreme Court — Appellate Division
• Parties: STEVEN ELLERS et al., Appellants, v. HORWITZ FAMILY LIMITED PARTNERSHIP et al., Respondents.

36 A.D.3d 849

831 N.Y.S.2d 417

2007 NY Slip Op 00599

STEVEN ELLERS et al., Appellants, v. HORWITZ FAMILY LIMITED PARTNERSHIP et al., Respondents.

2005-05305.

2005-06417.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided January 30, 2007.

In an action to recover damages for personal injuries, etc., the

plaintiffs appeal, as limited by their brief, from (1) stated portions of an order of the Supreme Court, Nassau County (Mahon, J.), entered May 17, 2005, and (2) so much of an amended order of the same court entered June 7, 2005 as granted those branches of the separate motions of the defendants Sharon Adar and Countryside Montessori School, Inc., the defendants Allstate Insurance Company, Roger Chizever, and Roger Chizever Agency, Inc., the defendant Horwitz Family Limited Partnership, the defendants Parker-Ziering, Inc., and Jeani Ziering, doing business as Ziering Interiors, and the defendant Steven H. Panzik, doing business as Powerhouse Pilates, which were for summary judgment dismissing the complaint insofar as asserted against each of them, and granted that branch of the motion of the defendants United Services, Ted Horowitz, and William McLaren, which was for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the appeal from the order entered May 17, 2005 is dismissed, as that order was superseded by the amended order entered June 7, 2005; and it is further,

Ordered that the order entered June 7, 2005 is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Parker-Ziering, Inc., and Jeani Ziering, doing business as Ziering Interiors, which was for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs, payable by the plaintiffs, is awarded to the defendants Sharon Adar and Countryside Montessori School, Inc., the defendants Allstate Insurance Company, Roger Chizever, and Roger Chizever Agency, Inc., the defendant Horwitz Family Limited Partnership, and the defendants United Services, Ted Horowitz, and William McLaren, appearing separately and filing separate briefs, and one bill of costs is awarded to the plaintiffs, payable by the defendants Parker-Ziering, Inc., and Jeani Ziering, doing business as Ziering Interiors.

"As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property" (Franks v G & H Real Estate Holding Corp., 16 AD3d 619, 620 [2005]). The Supreme Court properly granted those branches of the separate motions of the defendants Sharon Adar and Countryside Montessori School, Inc., the defendants Allstate Insurance Company, Roger Chizever, and Roger Chizever Agency, Inc., the defendant Steven H. Panzik, doing business as Powerhouse Pilates, and the defendants United Services, Ted Horowitz, and William McLaren, which were for summary judgment dismissing the complaint insofar as asserted against each of them, as those defendants demonstrated, as a matter of law, that they did not own, occupy, control, put to a special use, or have any right or obligation to maintain the parking lot where the accident occurred (see Morgan v Chong Kwan Jun, 30 AD3d 386, 388 [2006]; Marrone v South Shore Props., 29 AD3d 961, 963 [2006]; Franks v G & H Real Estate Holding Corp., supra; Warren v Wilmorite, Inc., 211 AD2d 904 [1995]). In opposition, the plaintiffs failed to raise a triable issue of fact.

Furthermore, the Supreme Court properly granted that branch of the motion of the defendant Horwitz Family Limited Partnership (hereinafter the...