Zadarosni v. F. & W. Restauranteurs of Southeast, Inc.

• Decision Date: 29 April 1993
• Citation: 597 N.Y.S.2d 220,192 A.D.2d 1051
• Parties: Silvia A. ZADAROSNI et al., Appellants, v. F. & W. RESTAURANTEURS OF SOUTHEAST, INC., Doing Business as S.W. Lauren's, et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 220

597 N.Y.S.2d 220

192 A.D.2d 1051

Silvia A. ZADAROSNI et al., Appellants, v. F. & W. RESTAURANTEURS OF SOUTHEAST, INC., Doing Business as S.W. Lauren's, et al., Respondents (And a Third-Party Action.)

Supreme Court, Appellate Division Third Department.

April 29, 1993.

Della Cioppa & Bogosian (Gary P. Bogosian, of counsel), Carmel, for appellants.

Kelly & Flanagan (Tracey Lombino, of counsel), Elmsford, for F. & W. Restauranteurs of Southeast, Inc., respondent.

Palmer & Gabel (Robert N. Palmer, of counsel), Poughkeepsie, for Yankee Sand & Gravel Inc., respondent.

Before WEISS, P.J., and LEVINE, CREW and MAHONEY, JJ.

MEMORANDUM DECISION.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Hickman, J.), entered January 15, 1992 in Putnam County, which granted defendants' motions for summary judgment dismissing, inter alia, the complaint.

After eating dinner at a restaurant operated by defendant F. & W. Restauranteurs of Southeast, Inc. (hereinafter F & W) and owned by defendant Yankee Sand & Gravel, Inc. (hereinafter Yankee), plaintiff Silvia A. Zadarosni fell in an area adjacent to the parking lot and sustained personal injuries. Plaintiffs' supplemental bill of particulars and the deposition testimony of plaintiff Jeffrey J. Zadarosni indicate that the fall occurred 3 to 5 feet from the shoulder of State Route 22 in the Town of Southeast, Putnam County. A survey map of the premises reveals that Yankee's property does not begin until at least seven feet from the edge of Route 22. In fact, the State owned the property where the accident occurred and, at the time, it was making repairs to the drainage line at that location. Defendants' motions for summary judgment dismissing, inter alia, the complaint were granted by Supreme Court. Plaintiffs appeal.

Unless there is a duty of care owed to the person injured, a party cannot be held liable in negligence (see, Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105, lv. dismissed & lv. denied 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671). The duty of care owed by an owner or a tenant in possession is to keep the property in a reasonably safe condition (see, Anable v. Bollentin, 175 A.D.2d 545, 546, 572 N.Y.S.2d 805). "Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises * * * " (Balsam v. Delma Eng'g Corp., supra, 139 A.D.2d at 296, 532 N.Y.S.2d 105 [citations omitted]; see, Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724).

Nothing that plaintiffs offered in opposition to the motions for summary judgment indicates that Yankee created the dangerous condition, owned or retained any control over the parking lot (much less the area owned by the State that was under repair) or had the authority to correct the condition. Consequently, summary judgment was properly awarded to Yankee (see, James v. Stark, 183 A.D.2d 873, 584 N.Y.S.2d 137; Herzfeld v. Incorporated Vil. of Cedarhurst, 171 A.D.2d 647, 648, 567 N.Y.S.2d 130). With respect to F &...