Mendez v. Goroff

• Decision Date: 24 April 1961
• Parties: Elba MENDEZ, as Administratrix of the goods, chattels and credits of Angelo Mendez; Elba Mendez and Anthony Mendez, Appellants, v. Franklyn GOROFF, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 580

214 N.Y.S.2d 580

13 A.D.2d 705

Elba MENDEZ, as Administratrix of the goods, chattels and credits of Angelo Mendez; Elba Mendez and Anthony Mendez, Appellants, v. Franklyn GOROFF, Respondent.

Supreme Court, Appellate Division, Second Department.

April 24, 1961.

Paul P. E. Bookson, New York City, Anthony M. Andreacchi, New York City, on the brief, for appellants.

M. Malcolm Friedman, Brooklyn, for respondent.

Before NOLAN, P. J., and UGHETTA, KLEINFELD, CHRIST and PETTE, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, plaintiffs appeal: (a) from an order of the Supreme Court, Kings County, dated July 5, 1960, granting defendant's motion, pursuant to rule 112 of the Rules of Civil Practice, to dismiss the amended complaint, and directing the entry of judgment accordingly; and (b) from the judgment thereafter entered dismissing the complaint.

Order and judgment affirmed, with $10 costs and disbursements.

It appears that a nine and a half-year-old boy was playing in and about defendant's building, which was an uninhabited multiple dwelling. The boy fell while using a defective metal ladder which extended from the top story of the building to the roof.

Under the allegations of the amended complaint it could not be proved that the boy was present on defendant's premises as an invitee (cf. Soto v. City of New York, 9 N.Y.2d 683, 212 N.Y.S.2d 418); nor that the premises were in such imminent danger of collapse as to constitute a trap; nor that defendant affirmatively created a dangerous condition equivalent to a spring gun, or the like (cf. Runkel v. City of New York, 282 App.Div. 173, 123 N.Y.S.2d 485; Runkel v. Homelsky, 286 App.Div. 1101, 145 N.Y.S.2d 729, affirmed 3 N.Y.2d 857, 166 N.Y.S.2d 307; Mayer v. Temple Properties, 307 N.Y. 559, 122 N.E.2d 909).

The amended complaint seeks to impose upon defendant a duty toward a trespasser of maintaining the premises in a reasonable state of repair (cf. Mendelowitz v. Neisner, 258 N.Y. 181, 179 N.E. 378; Vaughan v. Transit Development Co., 222 N.Y. 79, 118 N.E. 219).

NOLAN, P. J., and UGHETTA and KLEINFELD, JJ., concur.

CHRIST, J., dissents and votes to reverse the order, to vacate the judgment entered thereon, and to deny the motion, with the following memorandum:

On a motion by a defendant for judgment on the pleadings, the allegations of the complaint, as amplified by plaintiff's bill of particulars, are assumed to be true (Green v. Doniger, 300 N.Y. 238, 241, 90 N.E.2d 56, 57). If on any aspect of the pleaded facts plaintiff would be entitled to a recovery, the complaint should not be dismissed, and it should be liberally construed (Curren v. O'Connor, 304 N.Y. 515, 109 N.E.2d 605). Accordingly, the decision here must be premised on the following facts:

For a long period of time prior to the time of the accident the tenement house in question, owned and controlled by defendant, was uninhabited, open and unguarded; various portions of it, including the fire escape ladder which led from the top floor to the roof, had been defective and in dangerous condition; the ladder itself was rusted, shaky, weakened so that it could not sustain the weight of a person, and some of its rungs were missing; and children, including plaintiffs' nine and a half-year-old decedent, 'congregated and played' on the roof 'and were permitted to go thereon for such purposes.' The child fell from the ladder because of its said defective condition. Defendant knew of the defective...