Mevorah v. Garyn

• Decision Date: 16 November 1970
• Citation: 317 N.Y.S.2d 53,35 A.D.2d 823
• Parties: Stuart MEVORAH, an infant, etc., et al., Respondents, v. Steve GARYN et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 53

317 N.Y.S.2d 53

35 A.D.2d 823

Stuart MEVORAH, an infant, etc., et al., Respondents, v. Steve GARYN et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Nov. 16, 1970.

Levy & Feder, Brooklyn, for plaintiffs-respondents; Frederick Feder, Brooklyn, of counsel.

Helfenstein & Helfenstein, Brooklyn, Julius H. Turetsky, New York City, for defendant-appellants.

Before CHRIST, P.J., and RABIN, LATHAM, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., defendants appeal from an interlocutory judgment of the Supreme Court, Nassau County, dated March 26, 1970, in favor of plaintiffs upon a jury verdict after trial upon the issue of liability only.

Interlocutory judgment reversed, on the law and the facts, without costs, and complaint dismissed.

The infant plaintiff, six years and nine months of age at the time of the accident, was injured when he fell trhough a section of a sheet rock ceiling in the garage in defendants' home in Nassau County. The plaintiff father was acquainted with defendant Steve Garyn about 25 years and his family visited defendants 'very often'. They were social guests in defendants' home at the time of the accident. The infant plaintiff entered an expansion attic from a second-floor playroom. First, however, he had to remove a three and a half foot tall plywood board covering the opening to the attic by pulling on a knob in the center of the board. He then walked approximately 25 feet across the attic floor. The attic had a wooden floor except for one section between two adjoining beams over the garage, to which the sheet rock ceiling had been nailed. Photographs showed the opening to the expansion attic was located on the same wall of the playroom as a toy closet. The plywood board was simply set into the opening against brackets and was neither hinged nor nailed. The evidence further showed, however, that a chair was always kept in front of and blocking the opening, that defendants' children had been warned not to remove the board except in emergencies and that the infant plaintiff and his parents had visited the home as often as five times a week. Under these circumstances, we find there was not sufficient evidence to establish defendants' negligence.

As a social guest or licensee, the infant plaintiff took the premises as he found them. He was entitled to no greater protection than the members of the family of the owners of the premises (Levine v. Barfus, 28 A.D.2d 896, 282 N.Y.S.2d 23; see Plotz v. Greene, 13 A.D.2d 807, 215 N.Y.S.2d 813, affd. 10 N.Y.2d 991, 224 N.Y.S.2d 675, 180 N.E.2d 257). The only duty owed to him by defendants was to exercise reasonable care to disclose to him any dangerous defects known to them (defendants) and not likely to be discovered by him. Plaintiffs contend the existence in the playroom of the door leading to the attic and the sheet rock over the garage constituted a trap, but we cannot agree. The plywood covering bore little resemblance to the toy closet door. The latter was a double door, it pulled open on hinges and was slightly taller than the opening to the attic. The plywood covering was in place at least four years prior to the accident. By his own admission, the infant plaintiff had been in the playroom 'lots of times.' He knew he was not in the toy closet, yet according to his own testimony he was in the attic for 10 minutes prior to the accident.

In our opinion, the installation and/or maintenance of the unfinished expansion attic flooring and the sheet rock ceiling in the garage did not constitute an affirmative act of negligence on the part of defendants or a trap or hidden, dangerous defect of which they should have warned the infant plaintiff (see Krause v. Alper, 4 N.Y.2d 518, 176 N.Y.S.2d 349, 151 N.E.2d 895; Fauci v. Milano, 15 A.D.2d 939, 225 N.Y.S.2d 888).

CHRIST, P.J., and MUNDER and MARTUSCELLO, JJ., concur.

LATHAM, J., dissents and votes to affirm the interlocutory judgment, with the following memorandum, in which SAMUEL RABIN, J., concurs:

Defendants had a playroom in their house set aside for the use of their children and their children's friends. There were two doors set into the wall of the playroom, behind one an innocent toy closet, behind the other a brand new universe, as it were, the exploration of which was as irresistible to a normal youngster as flight is to a bird. There was nothing between this child and that attic except, as indicated by the majority, a 'plywood board * * * simply set into the opening against brackets * * * neither hinged nor mailed.' Unless effective steps were taken to secure the entrance to the attic it was not alone foreseeable--it was almost inevitable--that the children would sooner or later find their way inside. And inside that attic there lurked a situation 'pregnant with the greatest danger to life or limb,...