| Russo v Frankels Garden City Realty Co. |
| 2012 NY Slip Op 01806 [93 AD3d 708] |
| March 13, 2012 |
| Appellate Division, Second Department |
| Angela Russo, Appellant, v Frankels Garden City RealtyCo. et al., Respondents, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Robert J. Cava, P.C., West Babylon, N.Y., for respondent Frankels Garden City Realty Co. McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Yasmin D. Soto of counsel), forrespondent CVS Pharmacy, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), enteredSeptember 13, 2010, as granted the motion of the defendant CVS Pharmacy, Inc., for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it and, uponsearching the record, awarded summary judgment to the defendant Frankels Garden City RealtyCo. dismissing the complaint insofar as asserted against that defendant.
Ordered that the appeal from so much of the order as granted that branch of the motion of thedefendant CVS Pharmacy, Inc., which was for summary judgment dismissing all cross claimsinsofar as asserted against it is dismissed, as the plaintiff is not aggrieved by that portion of theorder (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof which, uponsearching the record, awarded summary judgment to the defendant Frankels Garden City RealtyCo. dismissing the complaint insofar as asserted against that defendant; as so modified, the orderis affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant CVS Pharmacy, Inc., payable bythe plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendant FrankelsGarden City Realty Co.
The plaintiff allegedly fell while descending two exterior steps of a building owned by thedefendant Frankels Garden City Realty Co. (hereinafter Frankels) and leased to the defendantCVS Pharmacy, Inc. (hereinafter CVS). At her deposition, the plaintiff testified that the paintalong [*2]the edge of the steps was worn off, that the steps lackeda handrail, and that the similarity in material and color of the bottom concrete step and theabutting cement sidewalk gave the illusion that there was only one step, rather than two steps.She also testified that she reached for a handrail as she fell, but that there was nothing to holdonto.
The plaintiff commenced this action against, among others, Frankels and CVS. CVS moved,inter alia, for summary judgment dismissing the complaint insofar as asserted against it,contending, among other things, that it had no duty to maintain the steps where the incidentoccurred and that the condition of the steps was open and obvious and not inherently dangerous.The Supreme Court, inter alia, granted that branch of CVS's motion, concluding that thecondition of the steps was open and obvious and not inherently dangerous. Upon searching therecord, the Supreme Court also awarded summary judgment to Frankels dismissing the complaintinsofar as asserted against Frankels.
Although we agree with the Supreme Court that CVS was entitled to summary judgmentdismissing the complaint insofar as asserted against it, we base our conclusion on a grounddifferent from that relied on by the Supreme Court. Generally, liability for a dangerous conditionon real property must be predicated upon ownership, occupancy, control, or special use of theproperty (see Ellers v Horwitz FamilyLtd. Partnership, 36 AD3d 849 [2007]; Franks v G & H Real Estate Holding Corp., 16 AD3d 619 [2005]).Here, CVS established its prima facie entitlement to judgment as a matter of law dismissing thecomplaint insofar as asserted against it by demonstrating that it did not own, occupy, control, ormake special use of the area where the incident occurred, and that it had no duty to makestructural repairs or paint the edge of the steps where the incident occurred (see Quarless v Dengler, 48 AD3d438 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarezv Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court properly grantedthat branch of CVS's motion which was for summary judgment dismissing the complaint insofaras asserted against it.
The Supreme Court, however, should not have searched the record and awarded summaryjudgment to Frankels dismissing the complaint insofar as asserted against Frankels. Based uponthe deposition testimony of the plaintiff and the photographs of the accident site contained in therecord, triable issues of fact exist as to whether the condition of the steps was open and obviousand not inherently dangerous (see Rorosv Oliva, 54 AD3d 398 [2008]; Chafoulias v 240 E. 55th St. Tenants Corp., 141AD2d 207 [1988]). Additionally, triable issues of fact exist as to whether the steps should havebeen equipped with handrails pursuant to applicable building code ordinances and whether theabsence of handrails was a proximate cause of the plaintiff's injuries (see Antonia v Srour, 69 AD3d 666[2010]; Viscusi v Fenner, 10 AD3d361 [2004]). Dillon, J.P., Florio, Chambers and Roman, JJ., concur.