Slomin v. Skaarland Const. Corp.

Decision Date25 August 1994
Citation207 A.D.2d 639,615 N.Y.S.2d 941
CourtNew York Supreme Court — Appellate Division
PartiesJaime A. SLOMIN, Appellant, v. SKAARLAND CONSTRUCTION CORPORATION et al., Respondents, et al., Defendant.

Page 941

615 N.Y.S.2d 941
207 A.D.2d 639
Jaime A. SLOMIN, Appellant,
v.
SKAARLAND CONSTRUCTION CORPORATION et al., Respondents, et
al., Defendant.
Supreme Court, Appellate Division,
Third Department.
Aug. 25, 1994.

Page 942

Seymour Fox P.C. (Bonnie P. Chavin, of counsel), Troy, for appellant.

Friedman, Hirschen, Miller, Coughlin & Campito P.C. (Robyn D. Ringler, of counsel), Schenectady, for Skaarland Const. Corp. and another, respondents.

Law Offices of Edward C. Fassett, Jr. (Judith Feldman Aronson, of counsel), Albany, for Blake Realty Inc., respondent.

Before CARDONA, P.J., and WHITE, WEISS and YESAWICH and PETERS, JJ.

PETERS, Justice.

Appeals (1) from an order of the Supreme Court (Kahn, J.), entered March 16, 1993 in Albany County, which granted motions by defendants Skaarland Construction Corporation, Skaarland Homes Inc. and Blake Realty Inc., doing business as Manor Homes, for summary judgment dismissing the complaint and all cross claims against them, and (2) from an order of said court, entered July 9, 1993 in Albany County, which denied plaintiff's motion for reconsideration.

On November 30, 1988, plaintiff purchased a town house located at 17 Surrey Hill in the Town of Colonie, Albany County. The town house was built in 1987 by defendant Skaarland Homes Inc. Prior to plaintiff's purchase, Skaarland Homes sold the town house to defendant Blake Realty Inc., doing business as Manor Homes (hereinafter Manor Homes), which used the town house as a model home in the promotion and sales of other town houses which were owned and developed by Skaarland Homes in a project known as Surrey Hill.

[207 A.D.2d 640] Originally, the attic in the town house could only be accessed through a scuttle hole. At the time of construction, a light fixture was placed within reach of the scuttle hole. When plaintiff sought to purchase this town house, plaintiff exercised the option of having a pull-down staircase built for easier assessibility to the attic. Accordingly, Manor Homes, through its sales agent, Nancy Machold, arranged for Skaarland Homes to install a pull-down staircase prior to plaintiff's purchase. Both Manor Homes, through Machold, and Skaarland Homes understood that plaintiff requested the installation of the staircase to include the placement of 100 square feet of plywood in the attic. Plaintiff admitted that she was never told where the plywood would be located but believed that it would be placed at the top of the staircase. Skaarland Homes did, in fact, arrange for the installation of the staircase and plywood as Manor Homes requested. Unknown to plaintiff, the flooring was placed behind the staircase.

With the only light located where the former scuttle hole accessed the attic, which was approximately 10 feet from the top of the staircase, Machold advised plaintiff at the time of closing that she should either have someone install a light switch at the entrance of the staircase or place a long string on the pull-down chain of the light fixture to enable her to turn on the light from the stairs. It is undisputed that plaintiff never viewed the attic area prior to her purchase of the town house.

On December 4, 1988, just four days after closing, plaintiff went to the attic for the first time for the purpose of, inter alia, attaching a string onto the light fixture. After locating the light fixture with a flashlight, plaintiff testified that she straddled the beams and trusses in the attic to get to the light and eventually turned it on. Plaintiff testified that she did not observe any plywood flooring between the opening of the staircase and the light at such time. When returning to the staircase, plaintiff stated that the light in the attic cast shadows in her path and, believing a piece of sheetrock was painted plywood, she stepped off the rafters onto such sheetrock and fell through the attic onto the garage floor. Plaintiff sustained injuries as a result of the fall.

Plaintiff commenced three separate actions which were consolidated against defendants alleging negligence...

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