Fellis v. Old Oaks Country Club, Inc.
| Decision Date | 18 July 1990 |
| Citation | 163 A.D.2d 509,558 N.Y.S.2d 183 |
| Parties | Elias J. FELLIS, etc., Appellant, v. OLD OAKS COUNTRY CLUB, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Sullivan & Liapakis, P.C., New York City (Pamela Anagnos Liapakis, Cyrus M. Diamond and Cheryl Eisberg Moin, of counsel), for appellant.
O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Carolyn A. Loftus of counsel), for respondent Old Oaks Country Club.
Anthony Pirrotti, Dobbs Ferry (Anthony Pirrotti, Jr., on the brief), for respondent Michael Lopez.
LAWRENCE, J.P., and RUBIN, SULLIVAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Wood, J.), entered January 30, 1989, which granted the defendants' motion to dismiss the complaint.
ORDERED that the order and judgment is affirmed, with one bill of costs.
The facts in this case are undisputed. While exiting a bar at about 3:00 A.M. on September 9, 1986, the defendant Michael Lopez, the assistant manager of the defendant Old Oaks Country Club, Inc., invited the plaintiff's decedent to accompany him to the club for a late night snack. The decedent had been formerly employed as a waitress at the club. The club was closed, but Lopez used his set of keys to enter the premises. Other employees with keys had also brought guests back to the club after closing hours. The general manager of the club was aware of this practice but never prohibited it.
The kitchen, located on the second floor, is equipped with a dumbwaiter that is used to transport supplies from the ground floor to the kitchen. The dumbwaiter is approximately three and one half feet high, three feet wide and two feet deep. It operates by means of a push button located on the wall outside of the apparatus. Although the dumbwaiter had originally been fitted with doors at the ground level which would render the lift inoperable if not closed, the doors had been removed approximately three years prior to the accident when the dumbwaiter broke down.
The repairman had informed the general manager that the doors could not be repaired. Therefore, to remain functional, either the doors had to be permanently removed or the entire unit replaced. The general manager of the club made the decision to have the doors removed and apparently later informed the board of this decision. After the removal of the doors, Lopez and other employees regularly rode the dumbwaiter. A flight of stairs is also located near the dumbwaiter, providing access to the second floor kitchen.
As was his practice on prior occasions when he returned to the club after closing hours to get something to eat, Lopez conducted a cursory security check to make certain the doors were locked and the windows were closed. Next, Lopez turned on the light that illuminates the stairway leading to the kitchen and instructed the decedent to use the stairs. Lopez...
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