Mullen v. Zoebe, Inc.

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

Jun 13, 1994

Versions:205 A.D.2d 597

613 N.Y.S.2d 271

1994 N.Y. App. Div. LEXIS 6144

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Rutledge, J.), dated April 4, 1991, as granted the branch of the motion of the defendants Zoebe, Inc., Zoe Geraldine Brown, and Ronberg Corp., which was for summary judgment dismissing the complaint. The defendants Zoebe, Inc., Zoe Geraldine Brown, and Ronberg Corp. cross appeal, as limited by their notice of appeal and brief, from so much of the same order as denied the branch of their motion which was for costs and attorney’s fees pursuant to CPLR 8303-a.

Ordered that the order is affirmed, without costs or disbursements.

"As a general rule, liability for dangerous conditions on land does not extend to a prior owner of the premises” (Bittrolff v Ho’s Dev. Corp., 77 NY2d 896, 898; see, Pharm v Lituchy, 283 NY 130, 132). "A narrow exception exists, however, and liability may be imposed [on a prior owner] where a dangerous condition existed at the time of the conveyance and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known” (Bittrolff v Ho’s Dev. Corp., supra, at 898; see, Farragher v City of New York, 26 AD2d 494, 496, affd on opn below 21 NY2d 756).

Here, the respondents-appellants, the prior owners of the premises where the plaintiff Felix T. Mullen was injured, do *598not fit within the foregoing exception in order to be held liable to the plaintiffs. Accordingly, the Supreme Court properly granted summary judgment to the respondents-appellants, who tendered sufficient evidence to demonstrate the absence of any material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320).

In addition, the Supreme Court properly denied the respondents-appellants’ request for attorney’s fees and costs pursuant to CPLR 8303-a. Sullivan, J. P., Balletta, Joy and Friedmann, JJ., concur.