Tedesco v. Nowak

294 A.D.2d 911, 742 N.Y.S.2d 461, 2002 N.Y. App. Div. LEXIS 4464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2002
• Status: Published

Opinion

—Appeal from a judgment of Supreme Court, Erie County (Howe, J.), entered May 3, 2001, which granted the motion of defendants Donald Nowak and Florence Nowak for summary judgment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries that he sustained when he, inter alia, allegedly struck his head on a low beam on the second floor of a building leased by Donald Nowak and Florence Nowak (defendants) to plaintiff’s employer. Supreme Court properly granted the motion of defendants seeking summary judgment dismissing the complaint against them. “[LJandowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition” (Tagle v Jakob, 97 NY2d 165, 168; see Basso v Miller, 40 NY2d 233, 241). The scope of any such duty of care varies with the foreseeability and potential gravity of the harm and the burden of avoiding the risk (see Basso, 40 NY2d at 241; Mejia v New York City Tr. Auth., 291 AD2d 225; Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 141; see also Kush v City of Buffalo, 59 NY2d 26, 29-30). We conclude as a matter of law that the condition of the second floor was not defective or unreasonably dangerous by reason of the existence of the low beam, and that defendants thus were not negligent in the manner in which they maintained the premises. Present—Pigott, Jr., P.J., Hurlbutt, Kehoe, Burns and Gorski, JJ.