| Vanderlyn v Daly |
| 2012 NY Slip Op 05770 [97 AD3d 1053] |
| July 26, 2012 |
| Appellate Division, Third Department |
| Linda Vanderlyn, Appellant, v Gina Daly et al., as Trustees of theIrrevocable Family Trust Made by Lillian Ferlazzo, et al., Defendants and Third-PartyPlaintiffs-Respondents. Medenbach & Eggers, Civil Engineering and Land Surveying, P.C.,Third-Party Defendant-Respondent, et al., Third-Party Defendants. |
—[*1] Thorn, Gershon, Tymann & Bonanni, LLP, Albany (Amanda Kuryluk of counsel), fordefendants and third-party plaintiffs-respondents. Russell A. Schindler, Kingston, for third-party defendant-respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered July 20, 2011in Ulster County, which, among other things, granted defendants' motion for summary judgmentdismissing the complaint.
Plaintiff allegedly sustained various injuries in December 2006 while walking on a raisedasphalt crosswalk between a CVS Pharmacy and a Dunkin Donuts in the City of Kingston, UlsterCounty. The property upon which the fall occurred is owned by two trusts—withdefendants Gina Daly, Gary DiDonna and Dennis DiDonna (hereinafter collectively referred to asthe trustee defendants) serving as the trustees thereof—and leased to defendantCedar-Kingston 4, LLC (hereinafter CK4). CK4 sought and obtained site plan approval for theproperty and, at the insistence of the local planning board, arranged for the installation of theraised crosswalk at that location.[FN1]
Plaintiff commenced this action against the trustee defendants and CK4, and defendants, inturn, commenced a third-party action against Leo Boice & Sons, Inc. (the general contractor forthe project), Medenbach & Eggers, Civil Engineering and Land Surveying, P.C. (hereinafterM&E) (the entity that designed the raised crosswalk), and Goldpaugh Paving, Inc. (the pavingcontractor). Following joinder of issue and discovery, defendants moved for summary judgmentdismissing the complaint, and M&E cross-moved for summary judgment dismissing thethird-party complaint, together with all cross claims asserted against it. In opposition, plaintifftendered an attorney's affidavit contesting the timeliness of the motions. Supreme Court rejectedplaintiff's argument and granted defendants' motion for summary judgment dismissing thecomplaint, as well as M&E's cross motion for summary judgment dismissing the third-partycomplaint against it. This appeal by plaintiff ensued.
We affirm. Initially, plaintiff's assertion that the underlying motions were untimely isunpersuasive.[FN2] Turning to the merits, we agree that defendants' motion for summary judgment [*2]was properly granted.[FN3] "As a general rule, an out-of-possession landlord is not responsible for dangerous conditionsexisting upon leased premises after possession of the premises has been transferred to the tenant.Exceptions to this rule include situations where the landlord retains control of the premises, hasspecifically contracted to repair or maintain the property, has through a course of conductassumed a responsibility to maintain or repair the property or has affirmatively created adangerous condition" (Davison v Wiggand, 247 AD2d 700, 701 [1998] [citationsomitted]; see Henness v Lusins, 229 AD2d 873, 873-874 [1996]; Downey v R.W.Garraghan, Inc., 198 AD2d 570, 571 [1993]).
In support of their motion for summary judgment, the trustee defendants submitted a copy ofthe ground lease for the property, which expressly provided that CK4 alone was responsible formaintaining the property and the improvements erected thereon, as well as making any necessaryrepairs thereto, and the limited right of entry retained by the trustee defendants is "insufficient toestablish the requisite degree of control necessary for the imposition of liability" (Grady v Hoffman, 63 AD3d 1266,1268 [2009] [internal quotation marks and citations omitted]). Additionally, the propertymanager for the project testified that the parcel was under the control of CK4, and a review of theexamination before trial testimony of the various contractors' representatives reveals that thetrustee defendants had no involvement in the design or construction of the raised crosswalk. Suchproof, in our view, was more than sufficient to discharge the trustee defendants' initial burden ontheir motion for summary judgment, and our review of the record as a whole fails to reveal aquestion of fact as to the trustee defendants' liability. Accordingly, Supreme Court properlygranted summary judgment to the trustee defendants.
We reach a similar conclusion with regard to CK4. To demonstrate its entitlement tosummary judgment, CK4 "was required to establish that it maintained the premises in areasonably safe condition and neither created nor had actual or constructive notice of theallegedly dangerous condition" (Managault v Rensselaer Polytechnic Inst., 62 AD3d 1196, 1197[2009] [internal quotation marks and citation omitted]; see Kearsey v Vestal Park, LLC, 71 AD3d 1363, 1364 [2010]). Aswe are satisfied that the record before us "fails to demonstrate the existence of anydangerous condition" on the property (Bilinski v Bank of Richmondville, 12 AD3d 911, 911-912 [2004]),CK4 was also properly granted summary judgment.
Plaintiff testified at her examination before trial that she tripped and fell as she walked fromthe concrete sidewalk adjacent to CVS to the raised crosswalk leading to DunkinDonuts—specifically, that she "tripp[ed] on something" as she was transitioning betweenthe two surfaces, causing her to fall within the striped portion of the crosswalk. Although therecord certainly reflects that the raised crosswalk caused certain draining issues and concerns,none of the individuals deposed in this matter even remotely suggested that the crosswalk asdesigned and/or constructed constituted a tripping hazard. The property manager testified that hedid not observe any problems with or have any concerns regarding the crosswalk—asentiment echoed by the [*3]paving contractor'srepresentative—and the local building inspector specifically stated that the sloped areabetween the raised crosswalk and the sidewalk was in compliance with the requirements of therelevant contract and drawings.[FN4] More to the point, the inspector testified that "there was no safety issue" with respect to thecrosswalk, and the sloped transition did not represent a tripping hazard.
To be sure, the photographs contained in the record on appeal indeed suggest that the slopedtransition between the concrete sidewalk cut and the raised crosswalk was not seamless—apoint acknowledged by M&E's representative, who testified that the edge of the pavement had"just a slight little taper to it" that was, in his view, "unacceptable." As noted previously,however, the record does not otherwise demonstrate that this sloped transition, which plaintiffconceded in her bill of particulars was "so open and obvious that it would be impossible for[anyone] not to observe [it]," constituted an inherently dangerous condition, nor has plaintiff"presented [any] evidence that the condition complained of constituted a trap or snare" (Colao v Community Programs Ctr. of LongIs., Inc., 29 AD3d 723, 724 [2006]). Accordingly, we conclude that summary judgmentwas properly award to CK4. Plaintiff's remaining arguments, to the extent that they are properlybefore us, have been examined and found to be lacking in merit.
Mercure, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, with onebill of costs.
Footnote 1: The plans called for thecrosswalk to be three inches high and 10 feet wide with a four-foot tapered transition to thesurrounding driveways and, initially, such crosswalks were to be installed throughout thecommercial development. Prior to plaintiff's accident, however, drainage issues apparently arose,as a result of which approval was obtained to remove the raised sidewalk and replace it withbrick pavers that were level with the surface of the surrounding driveways. That work, however,was not completed until after plaintiff's accident.
Footnote 2: Pursuant to CPLR 3212 (a),Supreme Court was free to establish its own deadline for the submission of a motion forsummary judgment (see generallyHarrington v Palmer Mobile Homes, Inc., 71 AD3d 1274, 1274 [2010]; Corchado v City of New York, 64AD3d 429, 429 [2009]) and, granting due deference to Supreme Court's interpretation of itsown scheduling order, we cannot say that the court erred in concluding that the challengedmotion and cross motion were timely.
Footnote 3: To the extent that plaintiffchallenges the award of summary judgment to M&E, we note that plaintiff's rights are notdirectly affected by the dismissal of the third-party complaint and, as she is not an aggrievedparty within the meaning of CPLR 5511, she lacks standing to appeal in this regard (see Smith v Town of Colonie, 60AD3d 1121, 1122 [2009]).
Footnote 4: Although there apparently was acrosswalk "exception" noted on at least one of the temporary certificates of occupancy issued forthe parcel, the inspector testified that the exception had to do with the height and width of theraised crosswalk and did not pertain to the sloped area between the crosswalk and the adjoiningsidewalk.