Masterson v. Knox
| Decision Date | 07 November 1996 |
| Citation | 649 N.Y.S.2d 108,233 A.D.2d 549 |
| Parties | Richard MASTERSON et al., Respondents, v. Paul KNOX III, Respondent, and Dominic Belmonte, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Pemberton & Briggs (James L. Pemberton, of counsel), Schenectady, for appellant.
Buckley, Mendelson & Criscione (John J. Criscione, of counsel), Albany, for Richard Masterson and another, respondents.
Ryan, Orlando & Smallacombe (Christopher C. O'Brien, of counsel), Albany, for Paul Knox III, respondent.
Before MERCURE, J.P., and WHITE, CASEY and SPAIN, JJ.
Appeal from an order of the Supreme Court (Kahn, J.), entered May 30, 1995 in Albany County, which, inter alia, denied defendant Dominic Belmonte's motion for summary judgment dismissing the complaint against him.
This action arises from a fall by plaintiff Richard Masterson (hereinafter plaintiff) that occurred in a parking lot of premises located in the City of Albany. Plaintiff had driven to the parking lot to keep an appointment with defendant Dominic Belmonte, a physician who was a tenant in the building on the premises where he maintained an office for the practice of his profession. Defendant Paul Knox III was the owner of the premises where he also maintained an office for his insurance business. Knox had a contract with an outside vendor to plow the parking lot and for sanding and salting at an additional expense. Knox also provided Belmonte and the other tenants with a shovel and a barrel of salt located at the side entrance of the building but, according to Belmonte, these items were never used.
After issue was joined in this action, Belmonte moved for summary judgment dismissing plaintiffs' complaint and any cross claims for legal insufficiency. Supreme Court denied the motion and Belmonte appeals from the order entered on the court's decision.
The order must be reversed. "Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises" (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; see, Turrisi v. Ponderosa Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724). Plaintiff's injuries occurred when he slipped and fell on an allegedly dangerous condition caused by snow and ice in the common parking area of the premises. However, nothing has been submitted in opposition to Belmonte's motion for summary judgment to indicate that Belmonte created the dangerous condition, owned or retained any control over the parking lot, or had the authority to correct the condition. Belmonte, his employees and patients had a license to park in the lot, but the right to use the parking lot does not establish control or give rise to a duty to warn (see, Zadarosni v. F. & W. Restauranteurs of Southeast, 192 A.D.2d 1051, 1052, 597 N.Y.S.2d 220). Without possession, or a right to maintain or control a common parking area, the tenant owes no duty of care with respect to any unsafe...
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...725, 922 N.Y.S.2d 792 ; Rosen v. Long Is. Greenbelt Trail Conference Inc., 19 A.D.3d 400, 401, 796 N.Y.S.2d 130 ; Masterson v. Knox, 233 A.D.2d 549, 550, 649 N.Y.S.2d 108 ). Moreover, contrary to the plaintiff's contention, Circle made a prima facie showing that it did not have the authorit......
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