Palmer v. Prescott
| Citation | 208 A.D.2d 1065,617 N.Y.S.2d 411 |
| Parties | Linda L. PALMER, Appellant-Respondent, v. Audrey R. PRESCOTT, as Representative of the Estate of John A. Reis, Deceased, Respondent-Appellant, and Paul Calcagno et al., Respondents. |
| Decision Date | 20 October 1994 |
| Court | New York Supreme Court Appellate Division |
La Fave & Associates (Suzanne L. Latimer, of counsel), Delmar, for appellant-respondent.
Carter, Conboy, Bardwell, Case & Blackmore (Kent B. Sprotbery, of counsel), Albany, for respondent-appellant.
Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander (Kyran D. Nigro, of counsel), Albany, for respondents.
Before MIKOLL, J.P., and MERCURE, YESAWICH and PETERS, JJ.
Cross appeals from an order of the Supreme Court (Harris, J.), entered August 23, 1993 in Albany County, which, inter alia, granted the cross motion of defendants Paul Calcagno, Angela Calcagno and My Daddy's Restaurant for summary judgment dismissing the complaint against them.
Defendants Paul Calcagno and Angela Calcagno are the owners of defendant My Daddy's Restaurant, a business enterprise located on State Route 9W in the Town of Coxsackie, Greene County (further references to the Calcagnos shall include their business). Vacant property owned by defendant Audrey R. Prescott, as executrix of the estate of John A. Reis (hereinafter the Reis property), abuts the Calcagno property on the north. On January 9, 1990, plaintiff, a patron of the Calcagnos, was injured when she slipped on a patch of ice in the vicinity of her fiance's vehicle, which was parked on the Reis property. On these cross appeals from Supreme Court's order granting summary judgment dismissing the complaint against the Calcagnos and denying Prescott's motion for summary judgment, we are required to consider the duty of care owed to patrons of a business who enter onto nearby property owned by an entity that has no interest in or relationship with the business and does not profit from or make any effort to attract its patrons. We conclude that, under the facts present here, neither the Calcagnos, as owners of the business patronized by plaintiff, nor Prescott, as owner of the property on which plaintiff sustained her injury, owed plaintiff a duty of care. We accordingly modify Supreme Court's order by reversing so much thereof as denied Prescott's motion for summary judgment.
Turning first to the claim against the Calcagnos, it is well-established law that liability for a dangerous condition on property is predicated upon ownership, occupancy, control or special use of the property (see, Turrisi v. Ponderosa Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724; McGill v. Caldors Inc., 135 A.D.2d 1041, 1043, 522 N.Y.S.2d 976). Where, as here, none of the elements is present, a party cannot be held liable for injuries caused by the condition of the property (see, Turrisi v. Ponderosa Inc., supra; Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296-297, 532 N.Y.S.2d 105, lv. denied, lv. dismissed 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671). Contrary to plaintiff's assertion, the record is devoid of evidence that the Calcagnos exercised control over any portion of the Reis property, and Paul Calcagno's alleged knowledge that restaurant patrons frequently parked on the adjacent Reis property, even if competently established, did not give rise to a duty to warn of the possibility that snow or ice might exist on the property during the month of January (see, Zandarosni v. F. & W. Restauranteurs of Southeast, 192 A.D.2d 1051, 1052, 597 N.Y.S.2d 220; McGill v. Caldors Inc., supra, at 1043, 522 N.Y.S.2d 976; cf., Licato v. Eastgate, 118 A.D.2d 904, 499 N.Y.S.2d 472).
Turning now to Prescott's cross appeal, it is our view that plaintiff improperly focuses upon the question of whether Prescott...
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