Tarrabocchia v. 245 Park Avenue Co.

• Decision Date: 12 July 2001
• Citation: 728 N.Y.S.2d 451
• Parties: (A.D. 1 Dept. 2001) Diane Tarrabocchia, et al., Plaintiffs-Respondents, v. 245 Park Avenue Company, etc., et al., Defendants-Appellants, and Travelers Insurance, Defendant. 3972-3972A : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 451

728 N.Y.S.2d 451 (A.D. 1 Dept. 2001)

Diane Tarrabocchia, et al., Plaintiffs-Respondents, v. 245 Park Avenue Company, etc., et al., Defendants-Appellants and Travelers Insurance, Defendant.

3972-3972A

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

July 12, 2001

Richard M. Fricke - for plaintiffs-respondents,

Loretta A. Redmond & Courtney M. Robbins - for defendants-appellants.

Williams, J.P., Tom, Wallach, Buckley, Friedman, JJ.

Order, Supreme Court, New York County (Sherry Klein-Heitler, J.), entered on or about October 6, 2000, which denied the cross motion of defendants 245 Park Ave. Co., Olympia & York Realty Corp. and World Financial Properties for summary judgment dismissing the complaint and all cross claims against them, unanimously reversed, on the law, without costs, and the cross motion granted. The Clerk is directed to enter judgment in favor of said defendants dismissing the complaint as against them. In light of the order of the same court and Justice, entered on or about May 8, 2001, granting the reargument motion of defendant ISS International Service System for summary judgment dismissing the complaint and all cross claims against that defendant, which is brought up for review herein (CPLR 5517[b]), the appeal of said defendant is unanimously dismissed as moot, without costs.

The first-named plaintiff slipped and fell in the lobby of her office building on a wet and snowy February afternoon in 1995. Her fall occurred "a few feet" from the entrance to the lobby newsstand where she was about to make a purchase on her way back from lunch. After falling, she noticed that her hand and shoes were wet with what she believed to be clear and unmuddied water. In traversing the lobby earlier that morning, she noticed that the building staff had put down 12-foot runners from the building entrance to the elevator corridors. Having sustained a serious knee injury as a result of the fall, she brought this action against the owner and its maintenance contractor.

Because this plaintiff was unable to demonstrate either actual or constructive notice to defendants of the condition complained of, the IAS court erred in denying their motions for summary judgment (see, Keum Choi v Olympia & York Water St. Co., 278 A.D.2d 106; Joseph v. Chase Manhattan Bank, 277 A.D.2d 96; Cottingham v. Hammerson Fifth Ave. Inc., 259 A.D.2d 348).

Both before the motion court and now on appeal, plaintiffs have invoked a...