Mendez v. Goroff

• Decision Date: 21 June 1960
• Parties: Elba MENDEZ, as Administratrix of the Goods, Chattels and Credits of Angelo Mendez, Elba Mendez and Anthony Mendez v. Franklyn GOROFF.
• Court: New York Supreme Court

Page 568

203 N.Y.S.2d 568

25 Misc.2d 1013

Elba MENDEZ, as Administratrix of the Goods, Chattels and Credits of Angelo Mendez, Elba Mendez and Anthony Mendez v. Franklyn GOROFF.

Supreme Court, Special Term, Kings County, Part I.

June 21, 1960.

Paul P. E. Bookson, New York City, for plaintiffs.

M. Malcolm Friedman, Brooklyn, for defendant.

MILES F. McDONALD, Justice.

Motion for an order pursuant to Rule 112 of the Rules of Civil Practice for judgment on the pleadings in favor of defendant and dismissing the plaintiffs' amended complaint on the grounds that said complaint does not state facts sufficient to constitute a cause of action granted.

As the complaint now under attack is an amended complaint it must be considered de novo and the previous determination with respect to the plaintiff's status does not constitute the law of the case, it being 'well established that when an amended pleading is served, it takes the place of the original pleading and the action proceeds as though the original pleading had never been served. Such original pleading under the circumstances, forms no part of the record and does not set forth the issues which are involved.' Kaplan v. K. Ginsburg, Inc., 14 Misc. 356, 358, 178 N.Y.S.2d 25, 28.

The plaintiff's intestate, a 9-year old infant, met his death on November 16, 1956 when he fell from a fire escape ladder leading to the roof of the defendant's premises at 38 Meserole Street, in the County of Kings, it being alleged that the said fall was caused by reason of the negligence of the defendant in maintaining said building and the fire escapes and more particularly the ladder leading from the top story to the roof of the said building and the appurtenances thereof in a dangerous and defective condition.

The right of the plaintiff's intestate to be upon the said premises is based upon allegations in the complaint to the effect 'that for a long time prior to the said Sixteenth day of November 1956 children including this plaintiff congregated and played on said roof and were permitted to go thereon for such purposes.' At the time of the accident and for sometime prior thereto said premises were untenanted. The complaint further alleges that the defendant 'failed to abate or prevent the use of various portions of said roof by the said children as aforesaid up to and including the said Sixteenth day of November 1956.' Based upon these allegations the plaintiff contends the status of the plaintiff's intestate was that of an invitee and that as such, the defendant owed him a legal duty to maintain the premises in a reasonably safe condition, which duty it is alleged the defendant breached.

The defendant on the other hand contends that the infant plaintiff was a trespasser or at best a bare licensee to whom he owed no legal duty except to abstain from inflicting intentional, wanton or wilful injuries.

In order that there might be actionable negligence there must be some legal duty or obligation on the part of the person against whom the claim of negligence is made (Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253).

While the problem presented here is not novel it is nevertheless perplexing.

'There is no branch of the law of torts which has given rise to more difficulty than that concerned with the infant licensee or trespasser.' Selected Notes from London Quarterly Review, N.Y.L.J. 2/21/56.

One who enters upon premises of another without invitation, without right, and solely for his own benefit is generally considered a trespasser or at best a mere licensee. In Black's Law Dictionary, 3rd Edition, 1944, a licensee is defined as 'a person who is neither a passenger, servant or trespasser, and does not stand in any contractual relationship with the owner of premises, and who is permitted to go thereon for his own interest, convenience and gratification.' A trespasser is defined generally as a person who enters upon the premises of another without invitation, express or implied, and does so out of curiosity or for his own purpose or convenience and not in the performance of any duty to the owner.

The responsibility of the owner of property to a trespasser or to a licensee is substantially the same, and to such a person the owner owes no duty except to refrain from inflicting intentional, wanton or wilful injury. If injury is sustained by reason of a mere defect in the premises there is no liability. When such a person enters upon the premises, he accepts them as he finds them, and the owner is not liable for injuries sustained by reason of the owner's passive failure on his part to keep the premises in good repair (Mendelowitz v. Neisner, 258 N.Y. 181, 179 N.E. 378).

The status of a person going upon the land of another is determined essentially by his purpose in going upon the land. One who enters upon the land at the express invitation of those lawfully upon the premises and who confers a benefit upon the owner is an invitee. Such person is frequently referred to as a business invitee in contradistinction to a social guest. The line of demarcation between a licensee and a trespasser is difficult to draw and is essentially determined upon the facts and circumstances of each case.

There is no allegation in the complaint that the defendant expressly invited children including the deceased to enter upon his premises for the purpose of permitting them to play thereon or that the defendant derived any benefit therefrom. The complaint merely alleges that for a long time prior to the date of the accident, children, including the plaintiff, congregated and played on the roof and were permitted to go there for such purpose. From this, the court is asked to conclude, that the plaintiff's intestate was an invitee. The law in this State, however, is to the contrary. 'Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, * * * the owner is not liable for negligence; for such person has taken all the risk upon himself.' Mendelowitz v. Neisner, supra [258 N.Y. 181, 179 N.E. 379].

Recently, the Appellate Division of this Department, in Soto v. City of New York, 9 A.D.2d 961, 962, 195 N.Y.S.2d 768, 769, affirmed the order of Mr. Justice Brown of this court when he dismissed the complaint upon the opening statement of counsel under almost identical statement of facts, the court holding:

'* * * To a licensee, present on the roof for his own purposes, in an area not set aside for the common use of tenants as an adjunct of their demised premises, an owner is subject to no liability for his acquiescence in the use of the roof and his passive failure to keep the roof in repair. * * * Such a user assumes the risk of the existing conditions when, as at bar, they eventuated from decay or mere failure to repair, there being no elements of affirmative negligence or creation of deceptive traps for the unwary on the owner's part.'

See also Vaughan v. Transit Development Co., 222 N.Y. 79, 118 N.E. 219; Nicoletti v. General Linen Supply Laundry Co. Inc., Sup., 109 N.Y.S.2d 474, affirmed 285 App.Div. 957, 138 N.Y.S.2d 159. So also, in Gallagher v. Fordham & Loring Corp., City Ct., 13 N.Y.S.2d 322 and Simmons v. Poughkeepsie Sav. Bank, 255 App.Div. 887, 7 N.Y.S.2d 993.

Plaintiff seeks to recover upon what appears to be a thinly disguised theory of attractive nuisance basing his claim upon the decisions in Collentine v. City of New York, 279 N.Y. 119, 17 N.E.2d 792; Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970; Mayer v. Temple Properties, Inc., 307 N.Y. 559, 122 N.E.2d 909 and Runkel v. City of New York, 282 App.Div. 173, 123 N.Y.S.2d 485. Each of these cases is clearly distinguishable.

In the Collentine case, the accident occurred in a public park and although the immediate location of the accident was not in a part of the park used as a children's playground, it was immediately adjacent thereto. The evidence indicated that there was no line of demarcation between the playground proper, and there was nothing to indicate that the building and its top surface did not constitute a part of the park facilities available to anyone who might desire to use it. Under such circumstances the plaintiff could not be classed as a bare licensee or trespasser.

In the Bowers case, the plaintiff was a social visitor of a tenant in the building in which the accident occurred and as such visitor had the same rights as her host, and as such, was within the class of a tenant.

In Mayer v. Temple Properties, Inc., supra, the defendant covered a hole 55 feet deep with a frail wooden covering which could not sustain the weight of a 12-year old boy. The court held the defendants liable whether the decedent was regarded as a bare licensee or trespasser because it found that the injuries resulted...