Dunn v. Reardon

Appellate Division of the Supreme Court of New York

Dunn v. Reardon

184 A.D.2d 1064, 584 N.Y.S.2d 370, 1992 N.Y. App. Div. LEXIS 8323

Appellate Division of the Supreme Court of the State of New York·Decided June 5, 1992·Published·Cited by 6 cases

Opinion

Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of defendants Eugene and Eleanor Tucker for summary judgment dismissing plaintiffs complaint. Defendants produced evidence in admissible form that demonstrated that the parking lot where plaintiff fell was not part of the premises leased to them and that they were not in control of the parking lot. Consequently, defendants owed no duty to keep the parking lot in good repair (see, Shire v Ferdinando, 161 AD2d 573, lv denied 76 NY2d 713; McGill v Caldors, Inc., 135 AD2d 1041; Elmlinger v Board of Educ., 132 AD2d 923). In opposition plaintiff submitted only the affidavit of his attor[1065] ney, which was insufficient to raise a triable issue concerning defendants’ possession or control of the parking lot (see, McGill v Caldors, Inc., supra). (Appeal from Order of Supreme Court, Herkimer County, Auser, J. — Summary Judgment.) Present — Boomer, J. P., Balio, Lawton, Fallon and Doerr, JJ.

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Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of defendants Eugene and Eleanor Tucker for summary judgment dismissing plaintiffs complaint. Defendants produced evidence in admissible form that demonstrated that the parking lot where plaintiff fell was not part of the premises leased to them and that they were not in control of the parking lot. Consequently, defendants owed no duty to keep the parking lot in good repair (see, Shire v Ferdinando, 161 AD2d 573, lv denied 76 NY2d 713; McGill v Caldors, Inc., 135 AD2d 1041; Elmlinger v Board of Educ., 132 AD2d 923). In opposition plaintiff submitted only the affidavit of his attor[1065] ney, which was insufficient to raise a triable issue concerning defendants’ possession or control of the parking lot (see, McGill v Caldors, Inc., supra). (Appeal from Order of Supreme Court, Herkimer County, Auser, J. — Summary Judgment.) Present — Boomer, J. P., Balio, Lawton, Fallon and Doerr, JJ.

Dunn v. Reardon, 184 A.D.2d 1064, 584 N.Y.S.2d 370, 1992 N.Y. App. Div. LEXIS 8323 (N.Y. Ct. App. 1992).

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