Parslow v. Leake

• Citation: 117 A.D.3d 55,984 N.Y.S.2d 493,2014 N.Y. Slip Op. 02211
• Parties: Bryan PARSLOW and Beth Parslow, Individually and as Parent and Natural Guardian, Plaintiffs–Appellants–Respondents, v. Steven B. LEAKE, Jonathan M. Henty, Corey R. Schlobohm, Josef M. Wolcott, Andrew Leonello, Nicholas E. Hooks, Andrew M. Morgan, Karl Smith, Corey Wilson, Kenneth M. Koperda, Jason P. Barry, Jr., Theodore L. Bilohlavek, Nathan P. Zilak, Defendants–Respondents–Appellants, Sigma Alpha Mu Fraternity, Inc., Philip J. Schneider, Jr., William K. Genewick, Daniel C. Diaz, Defendants–Respondents, Norman C. Giancursio, et al., Defendants.
• Decision Date: 28 March 2014
• Court: New York Supreme Court Appellate Division

117 A.D.3d 55
984 N.Y.S.2d 493
2014 N.Y. Slip Op. 02211

Bryan PARSLOW and Beth Parslow, Individually and as Parent and Natural Guardian, Plaintiffs–Appellants–Respondents,
v.
Steven B. LEAKE, Jonathan M. Henty, Corey R. Schlobohm, Josef M. Wolcott, Andrew Leonello, Nicholas E. Hooks, Andrew M. Morgan, Karl Smith, Corey Wilson, Kenneth M. Koperda, Jason P. Barry, Jr., Theodore L. Bilohlavek, Nathan P. Zilak, Defendants–Respondents–Appellants,
Sigma Alpha Mu Fraternity, Inc., Philip J. Schneider, Jr., William K. Genewick, Daniel C. Diaz, Defendants–Respondents,
Norman C. Giancursio, et al., Defendants.

Supreme Court, Appellate Division, Fourth Department, New York.

March 28, 2014.

[984 N.Y.S.2d 496]

Burden, Gulisano & Hickey, LLC, Buffalo (Philip M. Gulisano of Counsel), for Plaintiffs–Appellants–Respondents.

Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Rochester (Alison M.K. Moyer of Counsel), for Defendant–Respondent–Appellant Theodore L. Bilohlavek.

Hiscock & Barclay, LLP, Rochester (Gary H. Abelson of Counsel), for Defendant–Respondent–Appellant Nathan P. Zilak.

[984 N.Y.S.2d 497]

Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Michael J. Chmiel of Counsel), for Defendant–Respondent–Appellant Corey Wilson.

Brown & Kelly, LLP, Buffalo (H. Ward Hamlin, Jr., of Counsel), for Defendant–Respondent–Appellant Steven B. Leake.

The Law Firm of Janice M. Iati, P.C., Rochester (Janice M. Iati of Counsel), for Defendant–Respondent–Appellant Nicholas E. Hooks.

Law Office of Destin C. Santacrose, Buffalo (Cheryl A. Krzywicki of Counsel), for Defendant–Respondent–Appellant Josef M. Wolcott.

Mackenzie Hughes LLP, Syracuse (Samantha Millier of Counsel), for Defendant–Respondent–Appellant Kenneth M. Koperda.

Chamberlain D'Amanda Oppenheimer & Greenfield LLP, Rochester (Henry R. Ippolito of Counsel), for Defendant–Respondent–Appellant Jason P. Barry, Jr.

Barth Sullivan Behr, Buffalo (Andrew J. Kowalewski of Counsel), for Defendant–Respondent–Appellant Corey R. Schlobohm.

Kenney Shelton Liptak Nowak LLP, Buffalo (Ryon D. Fleming of Counsel), for Defendant–Respondent–Appellant Karl Smith.

Ernest D. Santoro, Esq., P.C., Rochester (Ernest D. Santoro of Counsel), for Defendant–Respondent–Appellant Andrew M. Morgan.

Hagelin Kent, LLC, Buffalo (Brent C. Seymour of Counsel), for Defendant–Respondent–Appellant Andrew Leonello.

Costello, Cooney & Fearon, PLLC, Syracuse (Louis J. Viviani of Counsel), for Defendant–Respondent–Appellant Jonathan M. Henty.

Jaeckle Fleischmann & Mugel, LLP, Buffalo (Heath J. Szymczak of Counsel), for Defendant–Respondent Sigma Alpha Mu Fraternity, Inc.

Goldberg Segalla LLP, Buffalo (Dennis P. Glascott of Counsel), for Defendant–Respondent William K. Genewick.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, AND CARNI, JJ.

Opinion by SCUDDER, P.J.

I

Plaintiffs commenced this action seeking damages for injuries that Bryan Parslow (plaintiff) sustained when he fell out of a second-story bathroom window while attending a party at “the Roxbury,” a residence owned and managed by defendant Mr. G. Rentals, LLC, which in turn is owned solely by defendant Norman C. Giancursio. All of the defendants-respondents-appellants except Jonathan M. Henty (resident defendants), rented individual rooms inside the Roxbury and, pursuant to their leases, were authorized to use and were required to clean the common areas, kitchens and bathrooms inside the residence. The resident defendants, Henty and others held themselves out as the Delta Iota chapter of a fraternity known as Sigma Alpha Mu, but it is undisputed that defendant Sigma Alpha Mu Fraternity, Inc. (National), terminated its relationship with the Delta Iota chapter in 2005.

As relevant on the appeal and cross appeals, the resident defendants, and defendants Daniel C. Diaz and William K. Genewick, individually moved or cross-moved for summary judgment dismissing the complaint against them, and the National cross-moved for summary judgment dismissing the complaint against it. Supreme Court granted the motion of the National in its entirety and dismissed the complaint against it. The court also dismissed the 8th, 11th, and 12th causes of

[984 N.Y.S.2d 498]

action. The court dismissed the third cause of action, for premises liability, insofar as it was asserted against resident defendants Steven B. Leake, Karl Smith, Corey Wilson, Kenneth M. Koperda, Theodore L. Bilohlavek and Nathan P. Zilak. The court denied the motions and cross motions of the remaining resident defendants, as well as the motion of Diaz, insofar as each sought dismissal of the third cause of action against them. The court dismissed the fourth cause of action, for negligent supervision, insofar as it was asserted against defendants Philip J. Schneider, Jr. and Genewick, but denied those parts of the motions and cross motions of the resident defendants and Diaz insofar as they sought summary judgment dismissing that cause of action against them. The court dismissed the fifth cause of action, alleging violations of General Obligations Law § 11–100 and Alcoholic Beverage Control Law § 65, insofar as it was asserted against Schneider. With respect to Genewick, Diaz and the resident defendants, the court granted their motions and cross motions seeking dismissal of that cause of action but only insofar as it was asserted by plaintiff. The court denied the motions and cross motions on the fifth cause of action insofar as they related “to the claims of Beth Parslow.”

On this appeal and these cross appeals, we address the court's determinations with respect to the third, fourth, fifth and eighth causes of action as well as the court's dismissal of the entire complaint against the National. We note that, following submission of their appellate brief, plaintiffs withdrew their appeal insofar as it concerns Schneider and Henty, and Henty withdrew his cross appeal against plaintiffs.

II

We agree with plaintiffs that the court erred in dismissing the third cause of action against Leake, Smith, Wilson, Koperda, Bilohlavek and Zilak, and we reject the contentions of Schlobohm, Wolcott, Leonello, Hooks, Morgan, and Barry that the court erred in refusing to dismiss that cause of action against them. The third cause of action alleges that the resident defendants were responsible for the maintenance and upkeep of the Roxbury and that they failed in their duty to keep the property in a safe and proper condition. It is well settled that “ ‘[l]iability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises' ” ( Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715;see Knight v. Realty USA.COM, Inc., 96 A.D.3d 1443, 1444, 947 N.Y.S.2d 693). Thus, a tenant, i.e., one who both occupies and controls the property, “has a common-law duty to keep the premises it occupies in a reasonably safe condition, even when the landlord has explicitly agreed in the lease to maintain the premises” ( Reimold v. Walden Terrace, Inc., 85 A.D.3d 1144, 1145, 926 N.Y.S.2d 153;see Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 854–855, 931 N.Y.S.2d 336).

With respect to the resident defendants, we agree with plaintiffs that they are not entitled to summary judgment dismissing the third cause of action against them. Preliminarily, we reject the contentions of some of the resident defendants that they are entitled to dismissal of the third cause of action against them because plaintiff is unable to identify what may have caused him to fall from the window “without engaging in speculation” ( Lane v. Texas Roadhouse Holdings, LLC, 96 A.D.3d 1364, 1364, 946 N.Y.S.2d 339 [internal quotation marks omitted] ).

“It is well established ... that [a] moving party must affirmatively [demonstrate] the merits of its cause of action

[984 N.Y.S.2d 499]

or defense and does not meet its burden by noting gaps in its opponent's proof ... Although [m]ere conclusions based upon surmise, conjecture, speculation or assertions are without probative value ..., a case of negligence based wholly on circumstantial evidence may be established if the plaintiffs show[ ] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” ( id. at 1364–1365, 946 N.Y.S.2d 339 [internal quotation marks omitted]; see Rothbard v. Colgate Univ., 235 A.D.2d 675, 678, 652 N.Y.S.2d 146).

Here, although plaintiff was unable to recall the circumstances of his fall from the second-story window, the resident defendants submitted evidence from which negligence and causation may be reasonably inferred ( see Lane, 96 A.D.3d at 1364–1365, 946 N.Y.S.2d 339;Rothbard, 235 A.D.2d at 678, 652 N.Y.S.2d 146;cf. Smart v. Zambito, 85 A.D.3d 1721, 1721–1722, 926 N.Y.S.2d 245). We thus conclude that the burden never shifted to plaintiffs to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

As tenants of the Roxbury, the resident defendants both occupied and controlled the premises and thus “owe[d] a duty of reasonable care to maintain [the] property in a safe condition and to give warning of unsafe conditions that are not open and obvious” ( Barry v. Gorecki, 38 A.D.3d 1213, 1216, 833 N.Y.S.2d 329;see Duclos v. County of Monroe, 258 A.D.2d 925, 926, 685 N.Y.S.2d 549;see also Milewski, 88 A.D.3d at 854–855, 931 N.Y.S.2d 336;Reimold, 85 A.D.3d at 1145, 926 N.Y.S.2d 153;see generally Basso v. Miller, 40 N.Y.2d 233, 240–241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Although the resident defendants rented individual rooms inside the residence, they each exercised control over the bathrooms inside the Roxbury and were required, pursuant to the terms of their leases, to clean those bathrooms ( cf. Rothstein v. 400 E. 54th St. Co., 51 A.D.3d 431, 431–432, 857 N.Y.S.2d 100).

Having concluded that the resident defendants had a duty to maintain the bathrooms of the Roxbury in a reasonably safe...