Sadowsky v. 2175 Wantagh Ave. Corp.

• Decision Date: 12 January 2001
• Citation: 721 N.Y.S.2d 665
• Court: New York Supreme Court — Appellate Division
• Parties: (A.D. 2 Dept. 2001) Erica F. Sadowsky, et al., respondents, v. 2175 Wantagh Avenue Corp., etc., defendant third-party plaintiff-appellant-respondent; Island Masonry & Construction Corp., third-party defendant-appellant. 1999-11634 Argued -

Page 665

721 N.Y.S.2d 665 (A.D. 2 Dept. 2001)

Erica F. Sadowsky, et al., respondents, v. 2175 Wantagh Avenue Corp., etc., defendant third-party plaintiff-appellant-respondent;

Island Masonry & Construction Corp., third-party defendant-appellant.

1999-11634

SUPREME COURT, APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT

Argued - January 12, 2001

March 5, 2001

Epstein, Young, Hill & Grammatico (Hodgson Russ Andrews Woods & Goodyear, LLP, New York, N.Y. [Dartaganan L. Jackson] of counsel), for defendant third-party plaintiff-appellant-respondent.

Michael F. X. Manning, Garden City, N.Y. (John P. Humphreys of counsel), for third-party defendant-appellant.

Jeffrey Mintz, New York, N.Y., for respondents.

FRED T. SANTUCCI, J.P., SONDRA MILLER, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ.

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff, 2175 Wantagh Avenue Corp., a/k/a Wantagh Avenue Corp. 2175, and the third-party defendant, Island Masonry & Construction Corp., separately appeal from an order of the Supreme Court, Nassau County (DiNoto, J.), dated November 8, 1999, which denied their respective motions for summary judgment dismissing the complaint and the third-party complaint.

ORDERED that the order is reversed, on the law, with one bill of costs, the motions are granted, and the complaint and the third-party complaint are dismissed.

On June 20, 1996, the injured plaintiff, Erica F. Sadowsky, allegedly slipped and fell on an elevated outdoor deck as she was entering the premises owned by the defendant third-party plaintiff, 2175 Wantagh Avenue Corp., a/k/a Wantagh Avenue Corp., 2175 (hereinafter Wantagh). The plaintiffs contend that the deck was slippery due to rain. Before the replacement of the deck in 1994, the old deck, which had become rotten, was covered with indoor/outdoor carpeting. There was no carpeting on the new deck. The plaintiffs allege that Wantagh created a dangerous condition, i.e., a chronically slippery surface whenever the deck became wet, by failing to carpet the new deck. Wantagh impleaded Island Masonry & Construction Corp. (hereinafter Island), which built the new deck. Wantagh and Island separately moved for summary judgment. The motions were denied, and we reverse.

In order to impose liability upon a defendant in a slip and fall case, there must be evidence tending to show the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive knowledge of it (see, Gordon v American Museum of Natural History, 67 N.Y.2d 836; King v New York City Tr. Auth., 266 A.D.2d 354; Patrick v Cho's Fruit & Vegetables, 248 A.D.2d 692). The mere fact...