Smith v. 4 Empire Mgmt. Grp., Inc.

Decision Date24 August 2022
Docket Number2020–03639,Index No. 612259/16
Citation208 A.D.3d 811,172 N.Y.S.3d 632 (Mem)
Parties Michael SMITH, appellant, v. 4 EMPIRE MANAGEMENT GROUP, INC., defendant third-party plaintiff-respondent; Town of Brookhaven, third-party defendant-respondent.
CourtNew York Supreme Court — Appellate Division

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Andrew Fisher ], of counsel), for appellant.

Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Patrick F. Palladino of counsel), for defendant third-party plaintiff-respondent.

COLLEEN D. DUFFY, J.P., BETSY BARROS, REINALDO E. RIVERA, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Sanford Neil Berland, J.), dated May 5, 2020. The order granted the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint and the cross motion of the third-party defendant for summary judgment dismissing the third-party complaint.

ORDERED that the appeal from so much of the order as granted the cross motion of the third-party defendant for summary judgment dismissing the third-party complaint is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511 ; Jeraci v. Cooper, 194 A.D.3d 798, 143 N.Y.S.3d 906 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant third-party plaintiff.

On August 4, 2015, the plaintiff allegedly sustained personal injuries when he tripped and fell at certain premises located in Suffolk County. The plaintiff commenced the instant action to recover damages for personal injuries against the defendant third-party plaintiff, 4 Empire Management Group, Inc. (hereinafter 4 Empire), alleging that it was negligent in, among other things, causing, permitting, and allowing the area where he fell to be and to remain in a dangerous, hazardous, and defective condition. Subsequently, 4 Empire commenced a third-party action against the third-party defendant, Town of Brookhaven. 4 Empire moved for summary judgment dismissing the complaint. In an order dated May 5, 2020, the Supreme Court, inter alia, granted 4 Empire's motion. The plaintiff appeals.

"Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property" ( Donatien v. Long Is. Coll. Hosp., 153 A.D.3d 600, 600–601, 57 N.Y.S.3d 422 ; see Jeffrey v. City of New York, 194 A.D.3d 701, 702, 143 N.Y.S.3d 592 ). "In the absence of ownership, occupancy, control, or special use, a party generally ‘cannot be held liable for injuries caused by the dangerous or defective condition of the property’ ...

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3 cases
  • Seizeme v. Levy
    • United States
    • New York Supreme Court — Appellate Division
    • August 24, 2022
    ...the plaintiff, in violation of Vehicle and Traffic Law § 1141, and when it was not reasonably safe to make a left turn, in violation of 208 A.D.3d 811 Vehicle and Traffic Law § 1163(a) (see Jackson v. Klein, 203 A.D.3d 1147, 163 N.Y.S.3d 438 ; Sapienza v. Harrison, 191 A.D.3d at 1030, 142 N......
  • Lyman v. Cablevision of Ossining Ltd. P'ship
    • United States
    • New York Supreme Court — Appellate Division
    • April 26, 2023
    ...or special use of the property (see Toner v. Trader Joe's E., Inc., 209 A.D.3d 690, 176 N.Y.S.3d 278 ; Smith v. 4 Empire Mgt. Group, Inc., 208 A.D.3d 811, 812, 172 N.Y.S.3d 632 ; Micek v. Greek Orthodox Church of Our Savior, 139 A.D.3d 830, 831, 31 N.Y.S.3d 189 ). The existence of one or mo......
  • Toner v. Trader Joe's E., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • October 5, 2022
    ...is generally predicated upon ownership, occupancy, control, or special use of the property’ " ( Smith v. 4 Empire Mgt. Group, Inc., 208 A.D.3d 811, 172 N.Y.S.3d 632, 2022 N.Y. Slip Op. 05050, *2 [2d Dept.], quoting Donatien v. Long Is. Coll. Hosp., 153 A.D.3d 600, 600–601, 57 N.Y.S.3d 422 ;......

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