| Silverberg v Palmerino |
| 2009 NY Slip Op 02496 [61 AD3d 1032] |
| April 2, 2009 |
| Appellate Division, Third Department |
| Debra Silverberg, Appellant, v Robert Palmerino et al.,Respondents. |
—[*1] Allen, Johnson & Longergan, L.L.P., Albany (Thomas J. Johnson of Bailey, Kelleher &Johnson, P.C., of counsel), for Robert Palmerino and another, respondents. Law Offices of Michael M. Emminger, Albany (Mark P. Donohue of counsel), for MurielHausler, respondent.
Stein, J. Appeals (1) from an order of the Supreme Court (Teresi, J.), entered June 21, 2007in Albany County, which granted defendant Muriel Hausler's motion for summary judgmentdismissing the complaint against her, and (2) from a judgment of said court (McNamara, J.),entered June 17, 2008 in Albany County, upon a verdict rendered partially in favor of theremaining defendants.
The residential properties located at 899 and 895 Mercer Street in the City of Albany, ownedby defendants Robert Palmerino and Deborah Palmerino (hereinafter collectively referred to asdefendants) and defendant Muriel Hausler, respectively, share a common driveway. On January21, 2004, plaintiff—then a second-floor tenant of defendants—slipped and fell onice in the driveway, prompting her to commence this action against Hausler and defendantsalleging that the injuries she sustained were the result of their negligence in maintaining thedriveway. Supreme Court (Teresi, J.) granted Hausler's motion for summary judgmentdismissing the [*2]complaint against her on the basis that sheowed no duty of care to her neighbors' tenant.[FN*]
Following a trial, which proceeded solely against defendants, a jury determined thatplaintiff's fall was 60% the result of her own negligence and 40% the result of defendants'negligence. The jury's $15,000 award to plaintiff for past pain and suffering was consequentlyreduced—after factoring in her comparative fault—to $6,000, and she was awardedno damages for future pain and suffering. Plaintiff's motion to set aside the jury verdict wasdenied by Supreme Court (McNamara, J.) and these consolidated appeals—whereinplaintiff asserts that Supreme Court erroneously granted Hausler's motion for summary judgmentand that the jury's determinations were against the weight of the evidence—ensued.
Inasmuch as we agree that Hausler was improperly awarded summary judgment, we mustreverse and order a new trial (seeGadani v Dormitory Auth. of State of N.Y., 50 AD3d 1303, 1304 [2008]). A movantseeking summary judgment "is required to establish by competent and admissible evidence aprima facie entitlement to [such] judgment" (Howard v J.A.J. Realty Enters., 283 AD2d854, 855 [2001]). Here, Hausler's motion for summary judgment was predicated exclusively onher assertion that she could not be held liable for plaintiff's injuries because she did not own theproperty on which plaintiff fell. She met her initial burden of establishing a prima facieentitlement to judgment on that basis, thus shifting the burden to plaintiff to demonstrate aquestion of fact requiring a trial (see CPLR 3212 [b]; Alvarez v Prospect Hosp.,68 NY2d 320, 324, 326 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]).
It is well settled that, in addition to ownership, occupancy or special use, liability for adangerous or defective condition on property may be predicated upon a party's exercise ofcontrol over the premises on which the accident occurred (see Saunders v Bryant's Towing, 27 AD3d 992, 993-994 [2006]).Here, in opposition to Hausler's motion for summary judgment, plaintiff and defendants offeredevidence that Hausler had assumed some responsibility for maintenance of the entire driveway,including snow removal. Specifically, the sworn written statements and/or deposition testimonyof Hausler and defendants demonstrated that they had entered into a relationship whereby theyshared maintenance responsibilities for the driveway, including repair, repaving and snowremoval, and that they evenly shared the costs thereof.
Further, Hausler acknowledged that the driveway was "a hill," which required the regularadministration of salt in the winter because driving up it was "always a problem." Hausler alsotestified at her deposition that, prior to her husband's death, he had been the one to hire acontractor to remove the snow from the driveway. The same contractor performed the removalservices in January 2004. Although it was unclear who actually hired the contractor in January2004, Hausler testified that she paid him in full for his snow removal services and thatdefendants reimbursed her for half of the costs at the end of the year. She further stated that shedid not expect the contractor to distribute salt, sand or deicer on the driveway; rather, if it wastoo icy, "somebody," including herself, would administer such materials. Notably absent from[*3]Hausler's deposition testimony was any indication that herattempts to deice the driveway were strictly limited to "her" side. Indeed, she indicated that thedriveway was so narrow she "hit the walls" when driving up it.
"Viewing the [foregoing] evidence in a light most favorable to plaintiff and affording herevery favorable inference" (Torosian vBigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [2007] [citation omitted]), weconclude that Hausler's motion for summary judgment should not have been granted becauseissues of fact exist as to the nature of her control over the subject property (see Arsenault vRegan Trust, 263 AD2d 754, 755 [1999]). Inasmuch as the jury's verdict against defendantsmay well have been impacted by the fact that they were the sole defendants before it and becauseHausler is entitled to an opportunity to argue plaintiff's comparative fault and to challenge theamount of damages, if any, to be apportioned among her and defendants, a new trial is required(see Gadani v Dormitory Auth. of State of N.Y., 50 AD3d at 1304). In view of thisconclusion, our consideration of plaintiff's remaining claims is unnecessary.
Mercure, J.P., Kane and Malone Jr., JJ., concur. Ordered that the order and judgment arereversed, on the law, motion denied and matter remitted to the Supreme Court for a new trial,with costs to abide the event. [See 2007 NY Slip Op 31756(U).]
Footnote *: The sole basis for SupremeCourt's determination was that plaintiff's fall occurred on defendants' side of the boundary lineseparating the properties, which purportedly ran down the center of the driveway.