Smith v. Peter and John's Pump House, Inc.

• Citation: 206 A.D.2d 840,616 N.Y.S.2d 315
• Parties: Lori A. SMITH, Appellant, v. PETER AND JOHN'S PUMP HOUSE, INC., D/B/A The Pump House Tavern, Rumetco Sales Inc., Phillip Ruffini, Florence C. Ruffini, Respondents, and Peter A. Limpert and Patricia A. Limpert, Appellants.
• Decision Date: 15 July 1994
• Court: New York Supreme Court — Appellate Division

Page 315

616 N.Y.S.2d 315

206 A.D.2d 840

Lori A. SMITH, Appellant, v. PETER AND JOHN'S PUMP HOUSE, INC., D/B/A The Pump House Tavern, Rumetco Sales Inc., Phillip Ruffini, Florence C. Ruffini, Respondents, and Peter A. Limpert and Patricia A. Limpert, Appellants.

Supreme Court of New York, Appellate Division,

Fourth Department.

July 15, 1994.

Mathews and Hall by Daniel Mathews, Syracuse, for appellant, Lori A. Smith.

Smith, Sovik, Kendrick and Sugnet, P.C. by James Lantier, Syracuse, for appellants, Limpert.

Sugarman, Wallace, Manheim and Schoenwald by Laura Alderman, Syracuse, for respondent, Peter and John's Pump House, Inc. d/b/a The Pump House.

MacKenzie, Smith, Lewis, Michell and Hughes by Laura Alderman, Syracuse, for respondents, Rumetco Sales Inc., Phillip and Florence Ruffini.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly found that defendants Rumetco Sales, Inc., and Phillip and Florence C. Ruffini owed no duty to plaintiff, and properly granted their motion for summary judgment. Plaintiff was not injured on defendants' premises and the condition of the premises was not related to plaintiff's injuries. Plaintiff's reliance on the doctrine imposing a duty on landowners to those using the premises, therefore, is misplaced (see, e.g., Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 449 N.E.2d 725; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531; DiSalvo v. Armae, Inc., 41 N.Y.2d 80, 390 N.Y.S.2d 882, 359 N.E.2d 391; Putnam v. Stout, 38 N.Y.2d 607, 611, 381 N.Y.S.2d 848, 345 N.E.2d 319).

The court erred, however, in granting the motion of defendant Peter and John's Pump House, Inc. (Pump House) for summary judgment dismissing plaintiff's complaint against it. There is a question of fact whether Pump House assumed a duty to patrons to ensure their safety in crossing Bear Street. "[O]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all" (Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275). (Appeals from Order of Supreme Court, Onondaga County, Stone, J.--Summary Judgment.)

DENMAN, P.J., and PINE, FALLON, CALLAHAN and DAVIS, JJ., concur.