Conlon v. Becksmad Associates

5 A.D.3d 286, 774 N.Y.S.2d 501, 2004 N.Y. App. Div. LEXIS 3446

Opinion

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about April 29, 2003, which, inter alia, denied defendant Triangle Home Furnishings’ motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff seeks to recover for injuries sustained when a patio umbrella, with its metal base still attached, was blown from the balcony of defendant Elizabeth Grant’s 14th floor apartment and landed on the roof of the vehicle plaintiff Dennis Conlon was driving. Inasmuch as the record discloses that the umbrella was installed on Grant’s balcony by defendant Triangle Home Furnishings and that Triangle was aware that Grant’s balcony, by reason of its elevation and proximity to the East River, was subject to high winds, triable issues are raised as to whether Triangle’s failure to bolt the umbrella to the balcony, or at least recommend that that be done, constituted actionable negligence. In this regard, we note evidence that shortly after the umbrella’s installation, Grant specifically advised Triangle that the umbrella, as initially installed, was not secure. Concur—Buckley, P.J., Williams, Lerner and Marlow, JJ.