Fontana v. R.H.C. Development, LLC

• Decision Date: 05 January 2010
• Docket Number: 2008-10700
• Parties: ENZA FONTANA, Respondent, v. R.H.C. DEVELOPMENT, LLC, Defendant/Third-Party Plaintiff-Appellant-Respondent. LAWRENCE S. ESPOSITO, Third-Party Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 561

892 N.Y.S.2d 504

2010 NY Slip Op 96

ENZA FONTANA, Respondent, v. R.H.C. DEVELOPMENT, LLC, Defendant/Third-Party Plaintiff-Appellant-Respondent LAWRENCE S. ESPOSITO, Third-Party Defendant-Respondent-Appellant.

2008-10700

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

Decided January 5, 2010.

In an action to recover damages for personal injuries, the defendant/third-party

plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated October 21, 2008, as denied its cross motion for summary judgment dismissing the complaint and the counterclaim by the third-party defendant, in effect, for contribution, and the third-party defendant cross-appeals from so much of the same order as denied his motion for summary judgment dismissing the third-party complaint.

Ordered that the order is reversed, on the law, with one bill of costs to the defendant/third-party plaintiff and the third-party defendant, the third-party defendant's motion for summary judgment dismissing the third-party complaint is granted, and the defendant/third-party plaintiff's cross motion for summary judgment dismissing the complaint and the third-party counterclaim is granted.

On August 21, 2003, the plaintiff, Enza Fontana, who worked as a cashier for nonparty Card Corner II, allegedly was injured when the back door of the store closed on her foot. R.H.C. Development, LLC (hereinafter RHC), owned the store space which was leased by the third-party defendant, Lawrence S. Esposito, and which housed Card Corner II. The plaintiff brought this action against RHC, as owner of the premises, alleging negligence. RHC answered, and subsequently brought a third-party action against Esposito for indemnification.

"In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560, 560 [2005]; see Bodden v Mayfair Supermarkets, 6 AD3d 372, 373 [2004]). Here, the evidence showed that the door that closed on the plaintiff's foot did not constitute a defective or dangerous condition. The plaintiff acknowledged in her deposition testimony that she had worked at Card Corner II for about two years, and during that time had used the door every day without incident, and had never taken any special precautions while holding it. Further, she had never complained about the door before the accident, nor, to...