Slomin v. Skaarland Const. Corp.

• Decision Date: 25 August 1994
• Citation: 207 A.D.2d 639,615 N.Y.S.2d 941
• Court: New York Supreme Court — Appellate Division
• Parties: Jaime 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.

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.

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, breach of warranty and merchantability, nuisance and strict liability. ¹ After issue was joined, Manor Homes, Skaarland Construction Corporation and Skaarland Homes moved for summary judgment dismissing the complaint and all cross claims. Supreme Court granted the motions for summary judgment. Plaintiff then moved to renew and reargue and Supreme Court denied such motion. Plaintiff now appeals from both orders.

Addressing first the motions for summary judgment, we note that plaintiff limited her appeal to issues regarding the alleged negligence of Skaarland Homes and Manor Homes and only requested the reinstatement of this cause of action. Since plaintiff has wholly failed to brief her remaining causes of action against such defendants as well as any cause of action concerning Skaarland Construction, we find that plaintiff has abandoned all claims against Skaarland Construction and all remaining causes of action, other than negligence, against Skaarland Homes and Manor Homes (see, First Natl. Bank of Amenia v. Mountain Food Enters., 159 A.D.2d 900, 901, 553 N.Y.S.2d 233).

In so addressing the alleged negligence of Skaarland Homes and Manor Homes, we find that the conflicting expert affidavits addressing an alleged violation of the State Building Code created an issue of fact which should have precluded an award of summary judgment. It is well settled that "[s]ummary judgment is a drastic remedy, the procedural equivalent of a trial (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853). Where there is doubt as to the existence of a triable issue or where the issue is arguable, summary judgment should not be granted (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). Issue finding rather than issue determination is the key to the procedure [id.]" (Davidowitz v. Cazes, 157 A.D.2d 1014, 1016, 550 N.Y.S.2d 503). We further find that should it be determined that Skaarland Homes and Manor Homes had complied with all applicable building codes, such compliance would not necessarily preclude a jury from finding that the absence of a walkway to the only accessible lighting or the absence of lighting accessible from the top of the staircase contributed to what may be found to be an inherently dangerous condition (see, Cirino v. Greek Orthodox Community of Yonkers, 193 A.D.2d 576, 598 N.Y.S.2d 959).

While a landowner's liability for the condition of real estate generally ceases when possession and control is transferred (see, Romel v. Reale, 155 A.D.2d 747, 547 N.Y.S.2d 691), it is settled that liability will remain with the vendor where the vendee has knowledge of the dangerous condition at the time of the conveyance but has not yet had a sufficient opportunity at the time of the accident to remedy the defect (see, Young v. Hanson, 179 A.D.2d 978, 979, 579 N.Y.S.2d 221). We find that a triable issue of fact was raised concerning plaintiff's knowledge of the potentially dangerous condition of the lack of flooring in the attic directly in front of the staircase. Even if plaintiff had knowledge of such condition, which is noticeably absent from the record before us, there remains an issue as to whether sufficient time had elapsed to give plaintiff a reasonable opportunity prior to the accident to cure the condition or the lack of accessible lighting.

Accordingly, based upon the placement of the plywood flooring behind the staircase as well as the placement of the only available light 10 feet from the entrance to the attic without a walkway to access such light, coupled with the lack of any other available light from the top of the stairs, we find that summary judgment was inappropriately granted in favor of Skaarland Homes and Manor Homes, on the issue of their negligence. A jury could reasonably conclude that the failure to provide one or both of the above was the proximate cause of plaintiff's injuries and that such injuries were foreseeable.

WHITE and YESAWICH, JJ., concur.

CARDONA, Presiding Justice (concurring in part and dissenting in part).

I concur with the majority's conclusion that the failure of defendant Skaarland Homes Inc. to install the plywood flooring at the top of the pull-down staircase rather than behind it may have contributed to the happening of the accident precluding an award of summary judgment in its favor. Nor does the record support the theory that, as a builder, Skaarland Homes cannot be held liable because it was simply following the original plans and specifications provided by the architect since the installation of the attic flooring was an add-on to an already completed home.

I join Justice Weiss in affirming the dismissal of plaintiff's action against defendant Blake Realty Inc., doing business as Manor Homes. I agree that the lack of attic flooring between the top of the pull-down staircase and the light fixture did not constitute a violation of the State Building Code. Additionally, there is no...