Keane v. 85-87 Mercer Street Associates, Inc.

Appellate Division of the Supreme Court of New York

Keane v. 85-87 Mercer Street Associates, Inc.

304 A.D.2d 327, 756 N.Y.S.2d 576, 2003 N.Y. App. Div. LEXIS 3538

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

DecidedApril 3, 2003

StatusPublished

Cited by2 cases

This text of 304 A.D.2d 327 (Keane v. 85-87 Mercer Street Associates, Inc.) 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.

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Keane v. 85-87 Mercer Street Associates, Inc., 304 A.D.2d 327, 756 N.Y.S.2d 576, 2003 N.Y. App. Div. LEXIS 3538 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about August 30, 2002, which, inter alia, denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion for summary judgment dismissing the complaint as against defendants-appellants was properly denied since the record discloses the existence of factual issues as to whether defendants-appellants, the lessees of the commercial premises which plaintiff was in the course of leaving when she allegedly slipped and fractured her ankle on a defective granite step, occupied, controlled and/or made special use of the steps upon which the accident is alleged to have occurred (see Balsam v Delma Eng’g Corp., 139 AD2d 292, 296 [1988], lv dismissed in part and denied in part 73 NY2d 783 [1988]). The factual issues raised by the vague and conflicting evidence submitted on defendant lessees’ motion include questions as to the extent of their commercial leasehold and whether it included the building’s front entrance steps; the extent to which they assumed control over the steps by undertaking in their lease to maintain, but not structurally repair, them; and whether they made special use of the sidewalk area by reason of the circumstance that the stairs providing access to their store extend out from the building and into the area of the sidewalk (see e.g. Granville v City of New York, 211 AD2d 195 [1995]).

We have considered defendants-appellants’ remaining arguments and find them unavailing. Concur — Buckley, P.J., Tom, Rosenberger, Ellerin and Williams, JJ.

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Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about August 30, 2002, which, inter alia, denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion for summary judgment dismissing the complaint as against defendants-appellants was properly denied since the record discloses the existence of factual issues as to whether defendants-appellants, the lessees of the commercial premises which plaintiff was in the course of leaving when she allegedly slipped and fractured her ankle on a defective granite step, occupied, controlled and/or made special use of the steps upon which the accident is alleged to have occurred (see Balsam v Delma Eng’g Corp., 139 AD2d 292, 296 [1988], lv dismissed in part and denied in part 73 NY2d 783 [1988]). The factual issues raised by the vague and conflicting evidence submitted on defendant lessees’ motion include questions as to the extent of their commercial leasehold and whether it included the building’s front entrance steps; the extent to which they assumed control over the steps by undertaking in their lease to maintain, but not structurally repair, them; and whether they made special use of the sidewalk area by reason of the circumstance that the stairs providing access to their store extend out from the building and into the area of the sidewalk (see e.g. Granville v City of New York, 211 AD2d 195 [1995]).

We have considered defendants-appellants’ remaining arguments and find them unavailing. Concur — Buckley, P.J., Tom, Rosenberger, Ellerin and Williams, JJ.

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304 A.D.2d 327, 756 N.Y.S.2d 576, 2003 N.Y. App. Div. LEXIS 3538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keane-v-85-87-mercer-street-associates-inc-nyappdiv-2003.

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