Gilmartin v. Tempestoso

273 A.D.2d 875, 709 N.Y.S.2d 298, 2000 N.Y. App. Div. LEXIS 6718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2000
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Michael J. Gilmartin (plaintiff) was injured when he allegedly slipped and fell on a layer of ice on an exterior staircase of a building owned by Ulderico Tempestoso and Antonio Ciccotelli (defendants). Supreme Court properly denied the motion of defendants for summary judgment dismissing the complaint against them. In support of the motion, defendants submitted deposition testimony in which they each testified that they had orally informed the tenants that the tenants were responsible for ice and snow removal but that no such provision is contained in the one-page lease. In addition, Tempestoso testified that he visited the premises five or six times a month to collect rent and to ascertain that their rules were being followed. Contrary to the contention of defendants, they failed to meet their initial burden of establishing as a matter of law that they are out-of-possession landlords with no control over the premises and thus are not liable for the allegedly dangerous condition of the premises (see, Cherubini v Testa, 130 AD2d 380, 382; cf., Carvano v Morgan, 270 AD2d 222; see also, Young v Moran Props., 259 AD2d 1037, 1038).

Also contrary to the contention of defendants, they failed to meet their initial burden of establishing as a matter of law that they had no constructive notice of the allegedly dangerous condition (see, Mikolajczyk v Morgan Contrs., 273 AD2d 864 [decided herewith]; Laster v Port Auth., 251 AD2d 204, 205, lv denied 92 NY2d 812) or that they had no duty to clear the ice because there was a snowstorm in progress when plaintiff fell (see, Cerra v Perk Dev., 197 AD2d 851). (Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Scudder and Kehoe, JJ.