Foley v. Golub Corp.

• Decision Date: 30 July 1998
• Citation: 676 N.Y.S.2d 308,252 A.D.2d 905
• Parties: , 1998 N.Y. Slip Op. 7270 Phyllimena FOLEY, as Administrator of the Estate of Phyllimena Howard, Also Known as Phyllis Howard, Deceased, Respondent, v. GOLUB CORPORATION, Doing Business as Price Chopper, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 308

676 N.Y.S.2d 308

252 A.D.2d 905, 1998 N.Y. Slip Op. 7270

Phyllimena FOLEY, as Administrator of the Estate of Phyllimena Howard, Also Known as Phyllis Howard Deceased, Respondent, v. GOLUB CORPORATION, Doing Business as Price Chopper, et al Appellants.

Supreme Court, Appellate Division Third Department.

July 30, 1998.

Carter, Conboy, Case, Blackmore, Napierski & Maloney (Kimberly A. Boucher, of counsel), Albany, for Golub Corporation, appellant.

Thorn & Gershon (Robert F. Doran, of counsel), Albany, for Brown Coach Inc., appellant.

Buckley, Mendlesohn & Criscione P.C. (John Criscione, of counsel), Albany, for respondent.

Before CARDONA, P.J., and WHITE, PETERS, CARPINELLO and GRAFFEO, JJ.

PETERS, Justice.

Appeal from an order of the Supreme Court (Harris, J.), entered May 27, 1997 in Albany County, which denied defendants' motions for summary judgment dismissing the complaint.

Pursuant to bus service provided to senior citizens by defendant Golub Corporation doing business as Price Chopper, plaintiff boarded a bus operated by defendant Brown Coach Inc. for a shuttle to a Price Chopper supermarket. After purchasing her groceries, she stood on the sidewalk next to the bus, with approximately six other senior citizens, while the driver, Kathy Fuller, loaded her bags into the cargo bays. As Fuller was loading the groceries, she heard someone yell "catch her," causing her to turn and observe plaintiff lying on the ground.

There were numerous conflicting explanations for plaintiff's fall. As told to Fuller who did not witness the fall, plaintiff "stepped off the side of the curb", "she was pushing to get first [on line]" and "she got her foot stuck in the paint" which had been applied to the curb bordering the parking lot shortly before the incident. According to plaintiff's written statement dated August 26, 1992, she was standing in line when "someone from behind bumped me and I lost my balance on the incline and fell". At no time had she mentioned slipping on wet paint.

As a result of her injuries, plaintiff commenced this action against Golub and Brown for negligence, alleging that she was bumped from behind by patrons of Price Chopper. Golub's negligence was predicated upon a failure to "exercise any form of control or restraint over its patrons", and in response to demands for a bill of particulars, inter alia, to properly supervise and maintain pedestrian traffic in its parking lots and on its premises and/or provide and supervise a proper area where elderly patrons could assemble and board its shuttle. With respect to Brown, it was alleged that there was a failure to provide a safe place for patrons to board and exit its vehicle and to supervise the area where it forced its patrons to assemble.

Brown's and Golub's motions for summary judgment were denied by Supreme Court. A question of fact was found to exist as to whether the allegedly wet paint and circumstances surrounding such activity constituted a dangerous condition which Golub created or had notice of. With respect to Brown, the court again focused on the painting activity purportedly occurring on the date of the accident, and found a question of fact as to whether Brown provided a reasonably safe entrance onto its vehicle. Defendants appeal.

We find that Supreme Court erred in denying summary judgment. It is well settled that " ' "[l]iability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises" ' " (Brown v. Congel, 241 A.D.2d 880, 881, 660 N.Y.S.2d 507, quoting Masterson v. Knox, 233 A.D.2d 549, 550, 649 N.Y.S.2d 108, quoting Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105, lv. dismissed, lv. denied 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671), and that "[t]he existence of one or more of these elements is sufficient to give rise to a duty to exercise reasonable care" (Turrisi v. Ponderosa Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724). Notwithstanding the fact that Golub leased the building in which Price Chopper was situated from Bella Vista Development Corporation, who agreed in its lease to provide general maintenance of the exterior common areas, and further acknowledging that Golub's occupancy and/or control of the outside area might have given rise to a duty despite such lease provision, Golub's...