Nicklas v. Tedlen Realty Corp.
| Decision Date | 05 May 2003 |
| Parties | RON NICKLAS, Appellant,<BR>v.<BR>TEDLEN REALTY CORP. et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On June 27, 1999, the plaintiff tripped and fell when he was walking across property located at 58-14 92nd Street in Elmhurst, New York, with his brother-in-law Vlasis Hamzas. The property was owned by the defendant Tedlen Realty Corp. (hereinafter Tedlen), which had operated a service station at that location through June 12, 1999. While the plaintiff could not say whether he fell over a rock or cracked pavement, Hamzas submitted an affidavit stating that he saw the plaintiff trip over a piece of "fractured pavement." Hamzas further specifically identified the spot where the plaintiff fell and stated that on occasions prior to the date of the accident, going back at least three months, he had seen the same area of pavement upon which the plaintiff tripped and fell, in the same hazardous condition. He described the pavement/blacktop in that area as severely cracked, broken, and unlevel, with pieces of the pavement/blacktop scattered about. Hamzas executed this affidavit almost a year before the instant motion for summary judgment was made by Tedlen.
Theologos Tiliakos, a principal of Tedlen and the manager of the service station located on the subject property, stated in an examination before trial that he was at the property daily to supervise the removal of tanks and gas pumps even after the service station ceased operating. He asserted that he was not aware of the alleged defective condition and had received no complaints about such a condition.
In an action arising from a trip and fall, the plaintiff must prove that the defendant either created the condition which caused the accident or had actual or constructive notice that such a hazardous condition existed...
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