Carol v. Hickory Pit Restaurant

Appellate Division of the Supreme Court of New York

Carol v. Hickory Pit Restaurant

221 A.D.2d 161, 633 N.Y.S.2d 31, 1995 N.Y. App. Div. LEXIS 10765

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 2, 1995

StatusPublished

Cited by8 cases

This text of 221 A.D.2d 161 (Carol v. Hickory Pit Restaurant) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carol v. Hickory Pit Restaurant, 221 A.D.2d 161, 633 N.Y.S.2d 31, 1995 N.Y. App. Div. LEXIS 10765 (N.Y. Ct. App. 1995).

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Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about April 18, 1994, which granted defendant G.S.L. Enterprises, Inc.’s motion and defendant Hickory Pit Restaurant’s cross motion for summary judgment dismissing the complaint and cross claims, unanimously modified, on the law, to deny Hickory Pit Restaurant’s cross motion and to reinstate the complaint against it, and otherwise affirmed, without costs.

Plaintiff alleged that she was injured when she slipped and fell on rotten vegetables on the sidewalk in front of the Hickory Pit Restaurant, whose premises were owned by G.S.L. Enterprises, Inc. Summary judgment was properly awarded to G.S.L. Enterprises, Inc. The right of reentry to inspect and make repairs retained by the out-of-possession landlord did not render it responsible for the general maintenance of the premises. That was the sole responsibility of Hickory Pit. The defect complained of did not involve significant structural and/or design defects or violate specific Administrative Code provisions which the landlord could have had the opportunity to discover and cure (see, Manning v New York Tel. Co., 157 AD2d 264, 269-270, distinguishing Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; see also, Brooks v Dupont Assocs., 164 AD2d 847).

[162]*162However, the court erred in granting Hickory Pit Restaurant’s cross motion for summary judgment. Plaintiff raised material issues of fact as to this defendant’s liability by introducing circumstantial evidence tending to show that the restaurant was responsible for the creation of the dangerous condition (see, Negri v Stop & Shop, 65 NY2d 625; Giambrone v New York Yankees, 181 AD2d 547; Brito v Manhattan & Bronx Surface Tr, Operating Auth., 188 AD2d 253, 254, appeal dismissed 81 NY2d 993). .The issue of Hickory Pit’s liability should be left for a jury to resolve (see, Ugarriza v Schmieder, 46 NY2d 471, 474). Concur—Ellerin, J. P., Wallach, Nardelli and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about April 18, 1994, which granted defendant G.S.L. Enterprises, Inc.’s motion and defendant Hickory Pit Restaurant’s cross motion for summary judgment dismissing the complaint and cross claims, unanimously modified, on the law, to deny Hickory Pit Restaurant’s cross motion and to reinstate the complaint against it, and otherwise affirmed, without costs.

Plaintiff alleged that she was injured when she slipped and fell on rotten vegetables on the sidewalk in front of the Hickory Pit Restaurant, whose premises were owned by G.S.L. Enterprises, Inc. Summary judgment was properly awarded to G.S.L. Enterprises, Inc. The right of reentry to inspect and make repairs retained by the out-of-possession landlord did not render it responsible for the general maintenance of the premises. That was the sole responsibility of Hickory Pit. The defect complained of did not involve significant structural and/or design defects or violate specific Administrative Code provisions which the landlord could have had the opportunity to discover and cure (see, Manning v New York Tel. Co., 157 AD2d 264, 269-270, distinguishing Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; see also, Brooks v Dupont Assocs., 164 AD2d 847).

[162]*162However, the court erred in granting Hickory Pit Restaurant’s cross motion for summary judgment. Plaintiff raised material issues of fact as to this defendant’s liability by introducing circumstantial evidence tending to show that the restaurant was responsible for the creation of the dangerous condition (see, Negri v Stop & Shop, 65 NY2d 625; Giambrone v New York Yankees, 181 AD2d 547; Brito v Manhattan & Bronx Surface Tr, Operating Auth., 188 AD2d 253, 254, appeal dismissed 81 NY2d 993). .The issue of Hickory Pit’s liability should be left for a jury to resolve (see, Ugarriza v Schmieder, 46 NY2d 471, 474). Concur—Ellerin, J. P., Wallach, Nardelli and Mazzarelli, JJ.

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Bluebook (online)

221 A.D.2d 161, 633 N.Y.S.2d 31, 1995 N.Y. App. Div. LEXIS 10765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carol-v-hickory-pit-restaurant-nyappdiv-1995.

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