| Stevenson v Saratoga Performing Arts Ctr., Inc. |
| 2014 NY Slip Op 01656 [115 AD3d 1086] |
| March 13, 2014 |
| Appellate Division, Third Department |
| Robert L. Stevenson et al., Respondents, v SaratogaPerforming Arts Center, Inc., Defendant, and American Cancer Society, EasternDivision, Inc., Appellant, and American Concert & Entertainment Services, Inc.,Respondent. (And a Third-Party Action.) |
—[*1] Law Office of Paul Pelagalli, PLLC, Ballston Spa (Paul Pelagalli of counsel), forRobert L. Stevenson and another, respondents. O'Connor, O'Connor, Bresee & First, PC, Albany (Margaret E. Dunham of counsel),for American Concert & Entertainment Services, Inc., respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Crowell, J.), enteredFebruary 20, 2013 in Saratoga County, which denied a motion by defendant AmericanCancer Society, Eastern Division, Inc. for summary judgment dismissing the complaintand cross claim against it.
Defendant American Cancer Society, Eastern Division, Inc. (hereinafter ACS)entered into a contract with Mazzone Management, Inc. to hold a fundraising gala at theHall of Springs [*2]in Saratoga County. MazzoneManagement was to cater the gala and set up tables and chairs in accordance with ACS'sseating plan. While plaintiff Robert L. Stevenson (hereinafter plaintiff), a MazzoneManagement employee, was arranging tables and chairs for the gala, he tripped over acable placed by defendant American Concert & Entertainment Services, Inc. (hereinafterACES), an entity hired by ACS to provide audiovisual services for the gala.
To recover for injuries sustained in the fall, plaintiff and his wife, derivatively,commenced this negligence action against ACS, ACES and defendant SaratogaPerforming Arts Center, Inc.[FN*]In its answer, ACES cross-claimed against ACS for contribution. Following joinder ofissue, ACS moved for summary judgment dismissing the complaint and cross claimagainst it. Supreme Court denied ACS's motion. ACS appeals.
Supreme Court properly concluded that ACS owed plaintiff a duty of care. In thecontext of premises liability, a party owes a duty to take reasonable measures to protectothers from dangerous conditions on the property only where that party owns, occupiesor controls the property or makes a special use of it (see Winne v Town of Duanesburg, 86 AD3d 779, 781[2011]; Noble v Pound, 5AD3d 936, 938 [2004]). No party contends that ACS owned, leased or made specialuse of the Hall of Springs. However, ACS, as a licensee exercising control, owed a dutyto those on the property to maintain the premises in a reasonably safe condition duringthe period of its use (see Torresv Washington Hgts. Bus. Improvement Dist. Mgt. Assn., Inc., 57 AD3d 214,214 [2008]). Although "mere sponsorship, absent control, does not render [an entity]legally responsible" for defects on the premises (Vogel v West Mountain Corp.,97 AD2d 46, 47-48 [1983]), ACS's involvement with the gala exceeded baresponsorship. ACS entered into a contract with Mazzone Management for use of the Hallof Springs, approved the floor plan for the gala, hired ACES to provide audiovisualservices, and hired a band for entertainment, and ACS representatives were presentduring and oversaw the set up and the event. An ACS representative testified at herdeposition that she was present during the set up between 1:00 p.m. and 4:00 p.m. on theday prior to the event, that she performed a walk-through of the premises, and that if shehad noticed any hazards—including tripping hazards—she would havepointed them out and had them remedied. As the record demonstrates that ACS"conceived of, planned, orchestrated and supervised the [gala]," it had control over thepremises during the set up and the event and thereby owed a duty of care to those presentto maintain the site in a reasonably safe condition (Golonka v Saratoga Teen &Recreation of Saratoga Springs, 249 AD2d 854, 855 [1998]; compare Johnson vCherry Grove Is. Mgt., 175 AD2d 827, 828 [1991]; McGrath v UnitedHosp., 167 AD2d 518, 519 [1990]).
Supreme Court properly denied ACS's motion for summary judgment becausequestions of fact exist as to its constructive notice of the defective condition. A party hasconstructive notice if the condition was visible and apparent "for a sufficient length oftime prior to the accident to permit [the] defendant's employees to discover and remedyit" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986];accord Cerkowski v PriceChopper Operating Co., Inc., 68 AD3d 1382, 1384 [2009]). Viewing theevidence in a light most favorable to plaintiffs and giving them the benefit of everyreasonable inference supported by the record, as we must on this summary judgmentmotion (see Winne v Town of Duanesburg, 86 AD3d at 780-781; Rought v Price Chopper OperatingCo., Inc., 73 AD3d 1414, 1414 [2010]), [*3]ACS failed to meet its burden as a question of fact exists asto whether ACS had constructive notice of the untaped cable that allegedly causedplaintiff to fall.
Plaintiff testified that, immediately prior to and in the immediate vicinity of his fall,an ACS representative asked him to move a table or chairs. Plaintiff stated that theunsecured cable was clearly visible to him and the ACS representative at that time.Although plaintiff testified that he did not know how long the unsecured cable waspresent and that he had only been working in that area of the room for a few minutesprior to tripping on the cable, he also testified that he tripped at approximately 2:30 p.m.The ACES employee who laid the cable testified that he began laying it at 1:00 p.m., itwould have taken 10 to 15 minutes to position it and he normally would have taped thecable to the floor "at most [10] minutes" after he positioned it, with the taping taking 10minutes. According to plaintiff, the untaped cable was visible and apparent prior to hisfall and an ACS representative could have seen it. Interpreting the evidence andresolving any credibility determinations in plaintiffs' favor, the record supports aninference that the ACES employee may have laid the cable by 1:15 p.m., but did notimmediately tape it down as he testified, because plaintiff asserts that he fell on anuntaped cable at approximately 2:30 p.m. As the visible, dangerous condition that causedplaintiff's fall possibly existed for more than an hour, a question of fact exists as towhether ACS had constructive notice of that condition (see Negri v Stop & Shop,65 NY2d 625, 626 [1985]). Accordingly, ACS failed to meet its initial burden that itlacked constructive notice, and it was not entitled to summary judgment (see Husted v Central N.Y. Oil &Gas Co., LLC, 68 AD3d 1220, 1222-1223 [2009]).
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,with one bill of costs.
Footnote *: The claim againstSaratoga Performing Arts Center has been dismissed.