Romel v. Reale

• Decision Date: 09 November 1989
• Citation: 155 A.D.2d 747,547 N.Y.S.2d 691
• Parties: Soula ROMEL, Appellant, v. Julius REALE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 691

547 N.Y.S.2d 691

155 A.D.2d 747

Soula ROMEL, Appellant, v. Julius REALE et al., Respondents.

Supreme Court, Appellate Division Third Department.

Nov. 9, 1989.

Grasso, Rodriguez, Putorti & Grasso, Schenectady (Hazel R. Rodriguez, of counsel), for appellant.

Joseph Caldwell, New Hartford, for respondents.

Before MAHONEY, P.J., and CASEY, WEISS, MIKOLL and HARVEY, JJ.

WEISS, Justice.

Appeal from an order and judgment of the Supreme Court (Lynch, J.), entered September 21, 1988 in Schenectady County, which granted defendants' motion for summary judgment dismissing the complaint.

On March 19, 1986, plaintiff was injured when she allegedly slipped on tree leaves on an outdoor stairway and sidewalk and fell at the premises at 30 Mergner Road in the Village of Fort Johnson, Montgomery County. Although legal title to the property was held by defendants, possession was enjoyed by Edward La Porta, the vendee under an executed installment contract for the purchase of real property dated January 5, 1985. The incident occurred while plaintiff was leaving the premises after a social visit with La Porta. Following discovery Supreme Court granted defendants' motion for summary judgment dismissing the complaint, finding that defendants had not exercised control of the property for 15 months prior to the accident and that La Porta had complete control and responsibility for maintenance and repairs. The court further held that the acquisition of a liability insurance policy did not subject defendants to liability. Plaintiff has appealed.

Plaintiff's sole argument is that defendants' payment for an insurance policy out of escrow funds established by the contract vendee, which named defendants as owners, evidenced their dominion and control over the property. This contention was raised in an affidavit by one of plaintiff's attorneys and later referred to by plaintiff in her own affidavit. An attorney's affidavit not based upon personal knowledge is without value (Hasbrouck v. City of Gloversville, 102 A.D.2d 905, 477 N.Y.S.2d 486). Moreover, it was incumbent upon plaintiff to come forward with proof in evidentiary form sufficient to demonstrate the existence of a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). It is this burden that plaintiff has failed to sustain.

Upon the execution of the contract for installment sale of the property, La Porta acquired the equitable title (see, Elterman v. Hyman, 192 N.Y. 113, 119, 84 N.E. 937). Defendants held the legal title in trust for La Porta and had an equitable lien as security for the payment of the purchase price (see, Trembath v. Berner, 240 N.Y. 618, 148 N.E. 729; New York Cent. & Hudson Riv. R.R. Co. v. Cottle, 187 A.D. 131, 143, 175 N.Y.S. 178, affd 229 N.Y. 514, 129 N.E. 896). La Porta, as the vendee in possession, "for all practical purposes, [was] the owner of the property with all the rights of an owner subject only to the terms of the contract" (Bean v. Walker, 95 A.D.2d 70, 72, 464 N.Y.S.2d...