Giaimo v. Roller Derby Skate Corp.

• Decision Date: 09 December 1996
• Citation: 650 N.Y.S.2d 791,234 A.D.2d 340
• Parties: Robert GIAIMO, et al., Appellants, v. ROLLER DERBY SKATE CORP., et al., Defendants, Town of Hempstead, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 791

650 N.Y.S.2d 791

234 A.D.2d 340

Robert GIAIMO, et al., Appellants, v. ROLLER DERBY SKATE CORP., et al., Defendants, Town of Hempstead, Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 9, 1996.

William B. Drabyk, Garden City, for Appellants.

Rivkin, Radler & Kremer, Uniondale, (Evan H. Krinick and Michael P. Versichelli of counsel), for Respondent.

Before BRACKEN, J.P., and O'BRIEN, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Franco, J.), entered October 16, 1995, which is in favor of the defendant Town of Hempstead dismissing the complaint insofar as asserted against it.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court dismissed the complaint against the defendant Town of Hempstead pursuant to CPLR 3216 based on a cross motion by the defendant Roller Derby Skate Corp., which was subsequently withdrawn. Assuming, arguendo, that the Town properly joined in the motion pursuant to CPLR 3216, we conclude that it was not entitled to dismissal of the complaint on that ground. The Supreme Court order which purportedly served as the requisite 90-day demand pursuant to CPLR 3216(b)(3) did not contain language indicating that it would serve as the basis for a notice to dismiss (see, Chase v. Scavuzzo, 87 N.Y.2d 228, 230, 638 N.Y.S.2d 587, 661 N.E.2d 1368; Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 A.D.2d 631, 635 N.Y.S.2d 691; cf., Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653, 646 N.Y.S.2d 15 ), and the Town did not serve the 90-day demand upon the plaintiffs (see, Ubriaco v. John T. Mather Mem. Hosp., 209 A.D.2d 404, 619 N.Y.S.2d 577).

In view of its determination to dismiss the complaint pursuant to CPLR 3126, the Supreme Court denied the Town's motion for summary judgment dismissing the complaint as academic. This court, however, may consider the merits of the Town's motion for summary judgment as an alternative ground for dismissal of the complaint, even though the Town did not appeal (see, Parochial Bus Systems v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241; see also, Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077).

We conclude that the Town established its entitlement to summary judgment. The plaintiff Robert Giaimo alleged that he was injured when he fell while ice skating at a rink owned by the Town. At his deposition, the injured plaintiff stated that he was not aware of any particular defect in the ice which caused him to fall. Prior to his accident, he noticed that the corners of the rink had ice shavings and appeared "worn" but he did not consider the ice surface to be hazardous. He further suggested that a defect in his skate may have caused his accident.

A...