Libby v. Waldbaum's Inc.

Appellate Division of the Supreme Court of New York

Libby v. Waldbaum's Inc.

213 A.D.2d 457, 624 N.Y.S.2d 890

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

DecidedMarch 13, 1995

StatusPublished

Cited by4 cases

This text of 213 A.D.2d 457 (Libby v. Waldbaum's 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.

Bluebook

Libby v. Waldbaum's Inc., 213 A.D.2d 457, 624 N.Y.S.2d 890 (N.Y. Ct. App. 1995).

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Opinion

—In an action to recover damages for personal injuries, etc., the defendant Waldbaum’s Inc. appeals from so much of an order of the Supreme Court, Suffolk County (Lama, J.), dated December 15, 1993, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendant Waldbaum’s Inc. for summary judgment dismissing the complaint insofar as it is asserted against it is granted, and the action against the remaining defendants is severed.

The infant plaintiff was injured while he was exploring the roof of a building that was under construction. It is well established that the imposition of liability for a dangerous condition on real property must be predicated upon occupancy, ownership, control, or special use of the premises (see, James v Stark, 183 AD2d 873; Balsam v Delma Eng’g Corp., 139 AD2d 292). The appellant’s evidence established that at the time of the accident, it did not occupy, own, control, or make special use of the construction site. Accordingly, because there exists no triable issue of fact, summary judgment should have been granted to the appellant. Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant Waldbaum’s Inc. appeals from so much of an order of the Supreme Court, Suffolk County (Lama, J.), dated December 15, 1993, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendant Waldbaum’s Inc. for summary judgment dismissing the complaint insofar as it is asserted against it is granted, and the action against the remaining defendants is severed.

The infant plaintiff was injured while he was exploring the roof of a building that was under construction. It is well established that the imposition of liability for a dangerous condition on real property must be predicated upon occupancy, ownership, control, or special use of the premises (see, James v Stark, 183 AD2d 873; Balsam v Delma Eng’g Corp., 139 AD2d 292). The appellant’s evidence established that at the time of the accident, it did not occupy, own, control, or make special use of the construction site. Accordingly, because there exists no triable issue of fact, summary judgment should have been granted to the appellant. Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.

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Bluebook (online)

213 A.D.2d 457, 624 N.Y.S.2d 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/libby-v-waldbaums-inc-nyappdiv-1995.

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