Misa v. Town of Brookhaven

212 A.D.3d 804

181 N.Y.S.3d 654

William MISA, respondent,

v.TOWN OF BROOKHAVEN, et al., defendants,Top of the Bay Restaurant, et al., appellants.

2020–04032

Index No. 610142/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 31, 2022

January 25, 2023

Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Lawrence B. Lambert and Todd Weisman of counsel), for appellants.

Gruenberg Kelly Della, Ronkonkoma, NY (Zachary M. Beriloff of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Top of the Bay Restaurant and Action Building Supply Corp. appeal from an order of the Supreme Court, Suffolk County (George M. Nolan, J.), dated May 8, 2020. The order, insofar as appealed from, denied that branch of those defendants’ cross-motion which was for summary judgment dismissing the second amended complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the cross-motion of the defendants Top of the Bay Restaurant and Action Building Supply Corp. which was for summary judgment dismissing the second amended complaint insofar as asserted against them is granted.

In June 2015, the plaintiff was attempting to retrieve his wagon from a wagon storage area located on "Main Walk" in Cherry Grove, and allegedly was injured when, while stepping backwards on a wooden walkway, he inadvertently stepped off that walkway and onto an adjacent ramp which he incorrectly perceived to be level with the walkway. As a result of the accident, the plaintiff commenced the instant action to recover damages for personal injuries against, among others, Top of the Bay Restaurant (hereinafter Top) and Action Building Supply Corp. (hereinafter Action; hereinafter together with Top, the defendants). At the time of the accident, Top operated a restaurant in a building owned by Action, the rear of which abutted the accident site. The plaintiff alleged, inter alia, that the defendants were negligent in failing to maintain the premises in a reasonably safe and proper condition by, among other things, failing to provide a railing, failing to place slip-resistant markings, and failing to adequately warn of the height differential between the raised wagon storage area and the underlying walkway.

After the completion of discovery, the defendants cross-moved for summary judgment dismissing the second amended complaint and all cross-claims insofar as asserted against them. The Supreme Court, among other things, denied the defendants’ cross-motion. The defendants appeal from so much of the order as denied that branch of their cross-motion which was for summary judgment dismissing the second amended complaint insofar as asserted against them.

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., Inc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 ; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Gani v. Avenue R Sephardic Congregation, 159 A.D.3d 873, 72 N.Y.S.3d 561 ; Kyte v. Mid–Hudson Wendico, Inc., 131 A.D.3d 452, 15 N.Y.S.3d 147 ; Bender v. Cemetery of the Holy Rood, 129 A.D.3d 754, 755, 10 N.Y.S.3d 607 ). As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property (see Arshinov v. GR 10–40, LLC, 176 A.D.3d 1019, 108 N.Y.S.3d 892 ; Futter v. Hewlett Sta. Yogurt, Inc., 149 A.D.3d 912, 913, 52 N.Y.S.3d 432 ; see also Basso v. Miller, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Micek v. Greek Orthodox Church of Our Savior, 139 A.D.3d 830, 831, 31 N.Y.S.3d 189 ). The existence of one or more of these elements is sufficient to give rise to a duty of care (see Donatien v. Long Is. Coll. Hosp., 153 A.D.3d 600, 57 N.Y.S.3d 422 ; Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818...