Zammiello v. Senpike Mall Co.

Appellate Division of the Supreme Court of New York

Zammiello v. Senpike Mall Co.

300 A.D.2d 1124, 750 N.Y.S.2d 922, 2002 N.Y. App. Div. LEXIS 13189

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

DecidedDecember 30, 2002

StatusPublished

Cited by2 cases

This text of 300 A.D.2d 1124 (Zammiello v. Senpike Mall Co.) 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

Zammiello v. Senpike Mall Co., 300 A.D.2d 1124, 750 N.Y.S.2d 922, 2002 N.Y. App. Div. LEXIS 13189 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from an order of Supreme Court, Oneida County (Shaheen, J.), entered April 18, 2002, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint.

[1125]*1125It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying defendant’s motion and reinstating the complaint and as modified the order is affirmed without costs.

Memorandum: Gloria Zammiello (plaintiff) was injured when she fell in a common area of a mall owned by defendant. Plaintiff failed to brief the issue of the denial of plaintiffs’ motion to preclude defendant from introducing certain evidence at trial and therefore has abandoned her appeal with respect to that issue (see Baliva v State Farm Mut. Auto. Ins. Co. [appeal No. 2], 286 AD2d 953, 955). We conclude that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. Although defendant established as a matter of law that, if plaintiff tripped on a particular joint in the mall floor between two types of tiling, there was no dangerous or defective condition at that spot (see generally Trincere v County of Suffolk, 90 NY2d 976, 977), plaintiffs raised an issue of fact through the affidavit of their expert whether the general condition of the mall floor where plaintiff fell was a “ ‘patchwork quilt’ of elevations.” In light of the facts and circumstances of the case, “ ‘including the width, depth, elevation, irregularity and appearance of the defect [s] along with the “time, place and circumstance” of the injury,’ ” the court should have “determined that there was an issue of fact whether a dangerous or defective condition existed on the [mall floor]” (Feneck v First Union Real Estate Equity & Mtge. Invs. [appeal No. 2], 266 AD2d 916, 917).

We therefore modify the order by denying defendant’s motion and reinstating the complaint. Present — Pigott, Jr., P.J., Green, Pine, Kehoe and Lawton, JJ.

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—Appeal from an order of Supreme Court, Oneida County (Shaheen, J.), entered April 18, 2002, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint.

[1125]*1125It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying defendant’s motion and reinstating the complaint and as modified the order is affirmed without costs.

Memorandum: Gloria Zammiello (plaintiff) was injured when she fell in a common area of a mall owned by defendant. Plaintiff failed to brief the issue of the denial of plaintiffs’ motion to preclude defendant from introducing certain evidence at trial and therefore has abandoned her appeal with respect to that issue (see Baliva v State Farm Mut. Auto. Ins. Co. [appeal No. 2], 286 AD2d 953, 955). We conclude that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint. Although defendant established as a matter of law that, if plaintiff tripped on a particular joint in the mall floor between two types of tiling, there was no dangerous or defective condition at that spot (see generally Trincere v County of Suffolk, 90 NY2d 976, 977), plaintiffs raised an issue of fact through the affidavit of their expert whether the general condition of the mall floor where plaintiff fell was a “ ‘patchwork quilt’ of elevations.” In light of the facts and circumstances of the case, “ ‘including the width, depth, elevation, irregularity and appearance of the defect [s] along with the “time, place and circumstance” of the injury,’ ” the court should have “determined that there was an issue of fact whether a dangerous or defective condition existed on the [mall floor]” (Feneck v First Union Real Estate Equity & Mtge. Invs. [appeal No. 2], 266 AD2d 916, 917).

We therefore modify the order by denying defendant’s motion and reinstating the complaint. Present — Pigott, Jr., P.J., Green, Pine, Kehoe and Lawton, JJ.

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Bluebook (online)

300 A.D.2d 1124, 750 N.Y.S.2d 922, 2002 N.Y. App. Div. LEXIS 13189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zammiello-v-senpike-mall-co-nyappdiv-2002.

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