Welwood v. Association for Children With Down Syndrome, Inc.

• Decision Date: 30 March 1998
• Parties: , 125 Ed. Law Rep. 542, 1998 N.Y. Slip Op. 3015 Rosalie WELWOOD, et al., Appellants, v. ASSOCIATION FOR CHILDREN WITH DOWN SYNDROME, INC., Defendant Third-Party Plaintiff-Respondent; North Bellmore Union Free School District, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 556

670 N.Y.S.2d 556

248 A.D.2d 707, 125 Ed. Law Rep. 542,

1998 N.Y. Slip Op. 3015

Rosalie WELWOOD, et al., Appellants, v. ASSOCIATION FOR CHILDREN WITH DOWN SYNDROME, INC., Defendant Third-Party Plaintiff-Respondent North Bellmore Union Free School District, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

March 30, 1998.

McAndrew, Conboy & Prisco (Michael Majewski, P.C., Garden City [Nicole Norris Poole], of counsel), for appellants.

Kelly, Rode & Kelly, LLP, Mineola (John D. Kelly and George J. Wilson, of counsel), for third-party defendant-respondent.

Before JOY, J.P., and KRAUSMAN, FLORIO and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Roberto, J.), dated February 3, 1997, as granted the motion by the defendant third-party plaintiff for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs payable to the third-party defendant-respondent, North Bellmore Union Free School District.

The injured plaintiff was employed as a matron on a bus which transported children to the defendant third-party plaintiff's school. On October 28, 1991, the injured plaintiff stepped off her bus in the parking lot adjacent to the school building and then slipped and fell on wet leaves and tree branches. At the time of the accident, the defendant third-party plaintiff leased a portion of the school building, and had the right to use designated spaces in the parking lot. However, under the terms of the defendant third-party plaintiff's lease agreement, the landlord retained "exclusive control and management" of the parking lot.

Contrary to the plaintiffs' contention, the Supreme Court properly awarded summary judgment to the defendant third-party plaintiff. As a general rule, liability for a dangerous condition on real property must be "predicated upon ownership, occupancy, control, or special use of the property" (Millman v. Citibank, 216 A.D.2d 278, 627 N.Y.S.2d 451; see, Masterson v. Knox, 233 A.D.2d 549, 649 N.Y.S.2d 108). "The determinative question is one of possession or control" (Sullivan v. Specialty Glass Corp., 229 A.D.2d 572, 646 N.Y.S.2d 36; McGill v. Caldors, Inc., 135 A.D.2d 1041, 522 N.Y.S.2d 976). Here, the evidentiary submissions by the defendant third-party plaintiff demonstrated that it did not have an exclusive right to possession of...