Palumno v. Cipriano

Appellate Division of the Supreme Court of New York

Palumno v. Cipriano

265 A.D.2d 538, 696 N.Y.S.2d 891, 1999 N.Y. App. Div. LEXIS 10810

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

DecidedOctober 25, 1999

StatusPublished

Cited by1 cases

This text of 265 A.D.2d 538 (Palumno v. Cipriano) 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

Palumno v. Cipriano, 265 A.D.2d 538, 696 N.Y.S.2d 891, 1999 N.Y. App. Div. LEXIS 10810 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Richmond County (Maltese, J.), dated March 3, 1999, which, upon a jury verdict, inter alia, finding them to be 50% at fault in the happening of the accident, and upon the denial of their motion to dismiss the complaint for failure to prove a prima facie case, is in favor of the plaintiffs and against them in the principal sum of $55,000 (50% of $110,000).

Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff Carmine Palumno injured his Achilles tendon when he tripped and fell on a plastic baseball bat on the steps [539]*539of the defendants’ premises. To establish a prima facie case of negligence, the plaintiffs had to demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition (see, Gordon v American Museum of Natural History, 67 NY2d 836; Dima v Breslin Realty, 240 AD2d 359). The plaintiffs failed to prove a prima facie case in this respect. Therefore, the Supreme Court should have granted the defendants’ motion, made at the close of testimony, to dismiss the complaint. Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Richmond County (Maltese, J.), dated March 3, 1999, which, upon a jury verdict, inter alia, finding them to be 50% at fault in the happening of the accident, and upon the denial of their motion to dismiss the complaint for failure to prove a prima facie case, is in favor of the plaintiffs and against them in the principal sum of $55,000 (50% of $110,000).

Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff Carmine Palumno injured his Achilles tendon when he tripped and fell on a plastic baseball bat on the steps [539]*539of the defendants’ premises. To establish a prima facie case of negligence, the plaintiffs had to demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition (see, Gordon v American Museum of Natural History, 67 NY2d 836; Dima v Breslin Realty, 240 AD2d 359). The plaintiffs failed to prove a prima facie case in this respect. Therefore, the Supreme Court should have granted the defendants’ motion, made at the close of testimony, to dismiss the complaint. Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.

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Bluebook (online)

265 A.D.2d 538, 696 N.Y.S.2d 891, 1999 N.Y. App. Div. LEXIS 10810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palumno-v-cipriano-nyappdiv-1999.

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