Scheffield v. Vestal Parkway Plaza, LLC

• Decision Date: 03 January 2013
• Citation: 2013 N.Y. Slip Op. 00001,102 A.D.3d 992,958 N.Y.S.2d 232
• Parties: Eric SCHEFFIELD et al., Appellants, v. VESTAL PARKWAY PLAZA, LLC, Defendant, and BRRS Associates et al., Respondents.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 992

958 N.Y.S.2d 232

2013 N.Y. Slip Op. 00001

Eric SCHEFFIELD et al., Appellants,

v. VESTAL PARKWAY PLAZA, LLC, Defendant,andBRRS Associates et al., Respondents.

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

Jan. 3, 2013.

Law Office of Alfred Paniccia Jr., Binghamton (Alfred Paniccia Jr. of counsel), for appellants.

Levene, Gouldin & Thompson, LLP, Binghamton (Lauren A. Kiley of counsel), for respondents.

Before: MERCURE, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.

STEIN, J.

Appeal from an order of the Supreme Court (Tait, J.), entered June 22, 2011 in Broome County, which granted a motion by defendants BRRS Associates and Parkway Plaza, LLC to dismiss the complaint against them.

Defendant BRRS Associates and defendant Parkway Plaza, LLC (hereinafter collectively referred to as defendants) each owned adjacent parcels of land fronting on Ozalid Road in the Town of Vestal, Broome County. The parcel owned by BRRS was subject to an easement granted to New York Telephone Company. Pursuant to that easement, the telephone company constructed a communications equipment vault on the BRRS property. In 1995, the Town abandoned, for public roadway purposes, the portion of Ozalid Road upon which defendants' parcels fronted and title to each portion was transferred from the Town to each of them, respectively. Defendants thereafter removed the pavement from the portions of Ozalid Road fronting their parcels of land, regraded the former roadbed and planted grass and other vegetation thereon. BRRS conveyed its parcel to Parkway Plaza in 1996 and Parkway Plaza transferred both parcels to the current owner, defendant Vestal Parkway Plaza, LLC, in 2003.

In November 2007, plaintiff Eric Scheffield (hereinafter plaintiff), an employee of Verizon New York, Inc.,¹ allegedly sustained injuries when he slipped and fell on the former roadbed property previously owned by defendants, as he was attempting to access the equipment vault. Plaintiff and his wife, derivatively, commenced this action against defendants and Vestal in November 2010 alleging, among other things, that defendants and Vestal breached their duty to plaintiff by creating a dangerous condition on the property and by failing to maintain the property in a reasonably safe condition. Defendants moved to dismiss the complaint against them for failure to state a cause of action. Plaintiffs now appeal from Supreme Court's order granting that motion.²

We reverse. When ruling on a motion to dismiss pursuant to CPLR 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977];see Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 [2012];Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). In determining whether a complaint states a cause of action for purposes of such a motion, we must accept the facts alleged in the pleading as true, confer on the plaintiff the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory ( see Simkin v. Blank, 19 N.Y.3d at 52, 945 N.Y.S.2d 222, 968 N.E.2d 459;Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Matter of Quiver Rock, LLC v. New York State Adirondack Park Agency, 93 A.D.3d 1135, 1136, 941 N.Y.S.2d 340 [2012] ).

It is well settled that a prior owner of premises may not be held liable for a dangerous condition on the land where “a dangerous condition existed at the time of the conveyance and the new owner has ... had a reasonable [amount of] time to discover the condition, if it was unknown, and to remedy the condition once it is known” ( Bittrolff v. Ho's Dev. Corp., 77 N.Y.2d 896, 898, 568 N.Y.S.2d 902, 571 N.E.2d 72 [1991];accord Smith v. Northern Lights Land Co., LLC, 80 A.D.3d 964, 965, 916 N.Y.S.2d 255 [2011] ). However, a prior owner who affirmatively created the alleged dangerous condition will not be absolved from liability ( see Marrero v. Marsico, 218 A.D.2d 226, 229, 639 N.Y.S.2d 183 [1996] ).

Here, Supreme Court correctly determined that no cause of action exists against defendants under the theory that they failed to maintain the property in a reasonably safe condition ( see Smith v. Northern Lights Land Co., LLC, 80 A.D.3d at 965, 916 N.Y.S.2d 255). At the time of plaintiff's injury, approximately 11 years had passed since BRRS last owned the property and more than four years had elapsed since Parkway Plaza owned any interest therein. In response to defendants' motion to dismiss, plaintiffs failed to adequately set forth facts demonstrating that defendants retained...