Secof v. Greens Condominium

• Decision Date: 20 February 1990
• Citation: 158 A.D.2d 591,551 N.Y.S.2d 563
• Parties: Martin SECOF, et al., Appellants, v. The GREENS CONDOMINIUM, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 563

551 N.Y.S.2d 563

158 A.D.2d 591

Martin SECOF, et al., Appellants, v. The GREENS CONDOMINIUM, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Feb. 20, 1990.

Schneider, Kleinick, & Weitz, P.C., New York City (Brian J. Shoot, Leslie Schneider and Paul B. Weitz, of counsel), for appellants.

Gerard A. Gilbride, Jr., Woodbury (Ann K. Kandel and Steven L. Sidney, of counsel), for respondents.

Before MOLLEN, P.J., and LAWRENCE, EIBER and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Morrison, J.), entered December 28, 1987, which, upon a ruling granting the defendants' motion to dismiss the complaint at the close of the plaintiffs' case on the ground of failure to present a prima facie case, is in favor of the defendants and against them.

ORDERED that the judgment is reversed, on the law, the defendants' motion is denied, and a new trial is granted, with costs to abide the event.

We agree with the plaintiffs' position that the Supreme Court erred in rendering judgment in favor of the defendants at the close of the plaintiffs' case and dismissing the complaint. On September 9, 1984, the plaintiff Martin Secof slipped and fell while playing tennis at the premises owned by the defendant The Greens Condominium (hereinafter the Greens) and managed by the defendant CMS Community Management Services, Inc. (hereinafter CMS). At the trial, Mr. Secof testified that he arrived at the Greens' tennis courts on the day in question at approximately 9:00 A.M. and he joined three individuals who were already playing on the east court. He explained that the condition of the "Har-tru" surface of the courts was fine and playable and the weather was sunny and dry. Approximately one hour after he began to play, a ball was hit to his left-hand side. In order to prepare to make a backhand shot, he moved to his left as he concentrated on the ball. Mr. Secof testified, "[s]uddenly I was on my back. I was looking up and there were a bunch of faces staring down at me". He was unable to remember anything further about the accident. Sometime after the incident, he observed a large grass stain on the left side of his tennis shorts.

Mr. Secof explained that he had played on the Greens' courts since 1980, and he had never experienced any problems with traction on the court. He did, however, register a complaint to a CMS employee in the early summer of 1984 concerning the unsightly condition of the courts.

Owen Grossblatt, a resident at the Greens and a friend of Mr. Secof, testified that he was playing tennis on the Greens' courts on the morning in question when he saw Mr. Secof playing on an adjacent court with three other individuals. Mr. Secof was playing on the south side of the adjacent court and Grossblatt was situated on the north side of his court. Sometime thereafter, Grossblatt observed Mr. Secof run back at a fast rate. His feet suddenly slipped out from under him and he fell a short distance from the fence. According to Grossblatt, Mr. Secof was not running backwards prior to the fall, but either ran sideways and then turned around, or ran back and then attempted to swing around to hit the ball. Grossblatt ran over to assist Mr. Secof, who was lying on his back with his ankle partially underneath the fence. In the area of the fall, Grossblatt observed an accumulation of leaves and moss and he noticed that the area was moist.

According to Grossblatt, the mossy condition and the presence of leaves in the area of Mr. Secof's fall had existed for years. Grossblatt had complained several times about this condition to CMS's employees. During Grossblatt's testimony, several photographs of the Greens's tennis courts, including the area of Mr. Secof's fall, were admitted into evidence. Grossblatt stated that the photographs, which showed an accumulation of leaves and moss in the area of Mr. Secof's fall, were fair and accurate representations of the tennis courts on the day of accident.

Marvin Boris, a friend of Mr. Secof who lived at the Greens, testified that on the morning of September 9, 1984, he was driving toward the exit of the condominium development when he noticed a commotion on the tennis courts. When Boris went over to the courts, he saw a number of individuals gathered around Mr. Secof, who was lying on the ground near the fence on the south end of the east tennis court. Boris noticed some skid marks extending from mossy foliage in the area near the fence. Boris also testified that he had noticed moss on the tennis courts on several occasions, and he informed a CMS employee of the condition.

The plaintiffs' expert, a licensed professional engineer, testified that the "Har-tru" surface of the Greens' tennis courts was comprised of chipped stone which provided a porous playing surface. The "Har-tru" surface also allows the player "a great deal of slide". The expert explained that the...