Knight v. Realty USA.com, Inc.

• Decision Date: 08 June 2012
• Parties: Mary J. KNIGHT, Plaintiff–Respondent, v. REALTY USA.COM, INC., Dianne Shaw, Realty USA, Defendants–Appellants, Frank Robertaccio, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1443
947 N.Y.S.2d 693
2012 N.Y. Slip Op. 04539

Mary J. KNIGHT, Plaintiff–Respondent,
v.
REALTY USA.COM, INC., Dianne Shaw, Realty USA, Defendants–Appellants, Frank Robertaccio, et al., Defendants.

Supreme Court, Appellate Division, Fourth Department, New York.

June 8, 2012.

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Michelle M. Davoli of Counsel), for Defendants–Appellants.

John J. Delmonte, Niagara Falls, for Plaintiff–Respondent.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[96 A.D.3d 1444]Plaintiff commenced this action seeking damages for injuries she sustained when, during an open house at a home owned by defendants Frank Robertaccio and Kathleen Robertaccio, she tripped and fell over a platform located in the basement. The Robertaccios had hired defendant Realty USA.com, Inc. and defendant Dianne Shaw, Realty USA, a real estate agent (collectively, defendant brokers) to sell their home. Shaw arranged the open house with the help of her assistant, and it was administered by a hostess employed by Shaw. Neither the Robertaccios nor Shaw were present during the open house.

As limited by their brief, defendant brokers contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint against them and in granting plaintiff's cross motion for leave to amend the summons and complaint. We agree. With respect to the motion for summary judgment, it is well settled that “ ‘[l]iability for a dangerous

[947 N.Y.S.2d 694]

condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises' ” ( Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715). “ ‘The existence of one or more of these elements is sufficient to give rise to a duty of care[, but w]here none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property’ ” ( id.). Defendant brokers, whose only connection to the property was listing it for sale and showing it to prospective buyers, met their initial burden on their motion by establishing that they did not occupy, own, or control the Robertaccios' home and did not employ it for a special use, and thus did not owe plaintiff a duty of care ( see Rackowski v. Realty USA, 82 A.D.3d 1475, 1476, 920 N.Y.S.2d 435;Eichelbaum v. Douglas Elliman, LLC, 52 A.D.3d 210, 859 N.Y.S.2d 145). In response thereto, plaintiff failed to raise a triable issue of...