Schwegler v. City of Niagara Falls

Sep 30, 2005
Versions:21 A.D.3d 1268
801 N.Y.S.2d 873
Perth start

Appeals from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered April 22, 2004. The order granted the motions of defendants Lite Trix, Inc. and Frank A. Amendola for summary judgment dismissing the amended complaint against them.

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

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Debra Schwegler (plaintiff) during a holiday festival run by defendant A Festival of Lights, Inc. (FOL) on property owned by defendant Frank A. Amendola. FOL had hired defendant Lite Trix, Inc. (Lite Trix) to design and build some of the displays used in the festival. Plaintiff was injured when a “candy cane cylinder” used to cover an electrical outlet fell on her. Lite Trix and Amendola each moved for summary judgment dismissing the amended complaint against them. We conclude that Supreme Court properly granted both motions.

By establishing that it did not own, possess or control the property and that it did not create the dangerous condition, Lite Trix established its entitlement to judgment as a matter of law (see Santo v Pick Quick Foods, 305 AD2d 399 [2003]). Contrary to the contention of plaintiffs and FOL, their submission of circumstantial evidence that Lite Trix created the dangerous condition was speculative and thus was insufficient to raise a triable issue of fact (see generally Feder v Tower Air, Inc., 12 AD3d 190, 191 [2004]; O’Connor v Lakeview Assoc., 306 AD2d 518, 519 [2003]). Even assuming, arguendo, that Lite Trix assumed a duty to cover the electrical outlet at issue, we conclude that plaintiffs failed to raise a triable issue of fact whether the conduct of Lite Trix “placed plaintiff in a more vulnerable position than plaintiff would have been in had [Lite Trix] done nothing” (Heard v City of New York, 82 NY2d 66, 72 [1993], rearg denied 82 NY2d 889 [1993]; see Van Hove v Baker Commodities, 288 AD2d 927 [2001]).

We further conclude that Amendola established his entitlement to judgment as a matter of law, and plaintiffs failed to raise a triable issue of fact. Although landlords who retain control of the premises may be liable for defects (see Jones v Bartlett, 275 AD2d 956 [2000], lv denied 96 NY2d 705 [2001]; Young v Moran Props., 259 AD2d 1037, 1038 [1999]; see generally Putnam v Stout, 38 NY2d 607, 616-618 [1976]), we conclude that Amendola established that he did not retain sufficient control to remain liable for defects on the premises. Pursuant to the lease between Amendola and FOL, Amendola retained the right to “visit and examine [the] premises,” and to approve alterations, additions or improvements. The lease further provided that Amendola‘s agents and servants were permitted to enter the premises to make necessary repairs. We conclude that those lease provisions are insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord who reserves the right to enter the leased premises to make necessary repairs. “[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists,” and there is no evidence in the record of a specific statutory violation (Regensdorfer v Central Buffalo Project Corp., 247 AD2d 931, 932 [1998], quoting Mendola v 2125 Seneca St., 237 AD2d 902, 903 [1997]), nor is there evidence that Amendola withheld his consent or approval with respect to the tenant‘s right to make any repairs (see Schlesinger v Rockefeller Ctr., 119 AD2d 462, 463 [1986]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ.

\ No newline at end of fileText with a footnote1 here.

Next paragraph2 with another footnote spanning pages.

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Case Information DEBRA SCHWEGLER et al., Appellants, v CITY OF NIAGARA FALLS, Defendant, A FESTIVAL OF LIGHTS, INC., Appellant, and FRANK A. AMENDOLA et al., Respondents. [801 NYS2d 873] Appeals from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered April 22, 2004. The order granted the motions of defendants Lite Trix, Inc. and Frank A. Amendola for summary judgment dismissing the amended complaint against them. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Debra Schwegler (plaintiff) during a holiday festival run by defendant A Festival of Lights, Inc. (FOL) on property owned by defendant Frank A. Amendola. FOL had hired defendant Lite Trix, Inc. (Lite Trix) to design and build some of the displays used in the festival. Plaintiff was injured when a “candy cane cylinder” used to cover an electrical outlet fell on her. Lite Trix and Amendola each moved for summary judgment dismissing the amended complaint against them. We conclude that Supreme Court properly granted both motions. By establishing that it did not own, possess or control the property and that it did not create the dangerous condition, Lite Trix established its entitlement to judgment as a matter of law (see Santo v Pick Quick Foods, 305 AD2d 399 [2003]). Contrary to the contention of plaintiffs and FOL, their submission of circumstantial evidence that Lite Trix created the dangerous condition was speculative and thus was insufficient to raise a triable issue of fact (see generally Feder v Tower Air, Inc., 12 AD3d 190, 191 [2004]; O‘Connor v Lakeview Assoc., 306 AD2d 518, 519 [2003]). Even assuming, arguendo, that Lite Trix assumed a duty to cover the electrical outlet at issue, we conclude that plaintiffs failed to raise a triable issue of fact whether the conduct of Lite Trix “placed plaintiff in a more vulnerable position than plaintiff would have been in had [Lite Trix] done nothing” (Heard v City of New York, 82 NY2d 66, 72 [1993], rearg denied 82 NY2d 889 [1993]; see Van Hove v Baker Commodities, 288 AD2d 927 [2001]). We further conclude that Amendola established his entitlement to judgment as a matter of law, and plaintiffs failed to raise a triable issue of fact. Although landlords who retain control of the premises may be liable for defects (see Jones v Bartlett, 275 AD2d 956 [2000], lv denied 96 NY2d 705 [2001]; Young v Moran Props., 259 AD2d 1037, 1038 [1999]; see generally Putnam v Stout, 38 NY2d 607, 616-618 [1976]), we conclude that Amendola established that he did not retain sufficient control to remain liable for defects on the premises. Pursuant to the lease between Amendola and FOL, Amendola retained the right to “visit and examine [the] premises,” and to approve alterations, additions or improvements. The lease further provided that Amendola‘s agents and servants were permitted to enter the premises to make necessary repairs. We conclude that those lease provisions are insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord who reserves the right to enter the leased premises to make necessary repairs. “[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists,” and there is no evidence in the record of a specific statutory violation (Regensdorfer v Central Buffalo Project Corp., 247 AD2d 931, 932 [1998], quoting Mendola v 2125 Seneca St., 237 AD2d 902, 903 [1997]), nor is there evidence that Amendola withheld his consent or approval with respect to the tenant‘s right to make any repairs (see Schlesinger v Rockefeller Ctr., 119 AD2d 462, 463 [1986]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ. Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ. \ No newline at end of file ```html Case Information DEBRA SCHWEGLER et al., Appellants, v CITY OF NIAGARA FALLS, Defendant, A FESTIVAL OF LIGHTS, INC., Appellant, and FRANK A. AMENDOLA et al., Respondents. Supreme Court, Appellate Division, Fourth Department, New York June 10, 2005 19 A.D.3d 1268 | 801 N.Y.S.2d 873 Appeals from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered April 22, 2004. The order granted the motions of defendants Lite Trix, Inc. and Frank A. Amendola for summary judgment dismissing the amended complaint against them. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Debra Schwegler (plaintiff) during a holiday festival run by defendant A Festival of Lights, Inc. (FOL) on property owned by defendant Frank A. Amendola. FOL had hired defendant Lite Trix, Inc. (Lite Trix) to design and build some of the displays used in the festival. Plaintiff was injured when a “candy cane cylinder” used to cover an electrical outlet fell on her. Lite Trix and Amendola each moved for summary judgment dismissing the amended complaint against them. We conclude that Supreme Court properly granted both motions. By establishing that it did not own, possess or control the property and that it did not create the dangerous condition, Lite Trix established its entitlement to judgment as a matter of law (see Santo v Pick Quick Foods, 305 AD2d 399 [2003]). Contrary to the contention of plaintiffs and FOL, their submission of circumstantial evidence that Lite Trix created the dangerous condition was speculative and thus was insufficient to raise a triable issue of fact (see generally Feder v Tower Air, Inc., 12 AD3d 190, 191 [2004]; O‘Connor v Lakeview Assoc., 306 AD2d 518, 519 [2003]). Even assuming, arguendo, that Lite Trix assumed a duty to cover the electrical outlet at issue, we conclude that plaintiffs failed to raise a triable issue of fact whether the conduct of Lite Trix “placed plaintiff in a more vulnerable position than plaintiff would have been in had [Lite Trix] done nothing” (Heard v City of New York, 82 NY2d 66, 72 [1993], rearg denied 82 NY2d 889 [1993]; see Van Hove v Baker Commodities, 288 AD2d 927 [2001]). We further conclude that Amendola established his entitlement to judgment as a matter of law, and plaintiffs failed to raise a triable issue of fact. Although landlords who retain control of the premises may be liable for defects (see Jones v Bartlett, 275 AD2d 956 [2000], lv denied 96 NY2d 705 [2001]; Young v Moran Props., 259 AD2d 1037, 1038 [1999]; see generally Putnam v Stout, 38 NY2d 607, 616-618 [1976]), we conclude that Amendola established that he did not retain sufficient control to remain liable for defects on the premises. Pursuant to the lease between Amendola and FOL, Amendola retained the right to “visit and examine [the] premises,” and to approve alterations, additions or improvements. The lease further provided that Amendola‘s agents and servants were permitted to enter the premises to make necessary repairs. We conclude that those lease provisions are insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord who reserves the right to enter the leased premises to make necessary repairs. “[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists,” and there is no evidence in the record of a specific statutory violation (Regensdorfer v Central Buffalo Project Corp., 247 AD2d 931, 932 [1998], quoting Mendola v 2125 Seneca St., 237 AD2d 902, 903 [1997]), nor is there evidence that Amendola withheld his consent or approval with respect to the tenant‘s right to make any repairs (see Schlesinger v Rockefeller Ctr., 119 AD2d 462, 463 [1986]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ. ``` Note: The user instructions for multi-opinion documents were followed. The provided OCR/Screenshots contain parts of three different cases. The case “Debra Schwegler et al. v City of Niagara Falls” is the first case in the provided material that has a complete caption and opinion text (though it starts mid-way on page 1268, the request asks to convert the MAIN opinion, and the caption for Schwegler appears clearly at the bottom of 1268 and the text continues on 1269 and 1270). The text before the Schwegler caption on page 1268 is partial text from a previous case and was skipped per instructions. The text after the Schwegler opinion ends on 1270 (“Present—Pigott, Jr...“) belongs to other cases (Muller v Applebee and Wayne Cooperative Insurance Company v Woodward) and was excluded per instructions. The page markers use the reporter pagination visible at the top of the pages. Correction: The case name in the caption is `Debra Schwegler et al., Appellants, v City of Niagara Falls, Defendant, A Festival of Lights, Inc., Appellant, and Frank A. Amendola et al., Respondents.` The shortName should be `Schwegler v. City of Niagara Falls`. Final HTML: ```html Case Information DEBRA SCHWEGLER et al., Appellants, v CITY OF NIAGARA FALLS, Defendant, A FESTIVAL OF LIGHTS, INC., Appellant, and FRANK A. AMENDOLA et al., Respondents. Supreme Court, Appellate Division, Fourth Department, New York June 10, 2005 [801 NYS2d 873] Appeals from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered April 22, 2004. The order granted the motions of defendants Lite Trix, Inc. and Frank A. Amendola for summary judgment dismissing the amended complaint against them. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Debra Schwegler (plaintiff) during a holiday festival run by defendant A Festival of Lights, Inc. (FOL) on property owned by defendant Frank A. Amendola. FOL had hired defendant Lite Trix, Inc. (Lite Trix) to design and build some of the displays used in the festival. Plaintiff was injured when a “candy cane cylinder” used to cover an electrical outlet fell on her. Lite Trix and Amendola each moved for summary judgment dismissing the amended complaint against them. We conclude that Supreme Court properly granted both motions. By establishing that it did not own, possess or control the property and that it did not create the dangerous condition, Lite Trix established its entitlement to judgment as a matter of law (see Santo v Pick Quick Foods, 305 AD2d 399 [2003]). Contrary to the contention of plaintiffs and FOL, their submission of circumstantial evidence that Lite Trix created the dangerous condition was speculative and thus was insufficient to raise a triable issue of fact (see generally Feder v Tower Air, Inc., 12 AD3d 190, 191 [2004]; O‘Connor v Lakeview Assoc., 306 AD2d 518, 519 [2003]). Even assuming, arguendo, that Lite Trix assumed a duty to cover the electrical outlet at issue, we conclude that plaintiffs failed to raise a triable issue of fact whether the conduct of Lite Trix “placed plaintiff in a more vulnerable position than plaintiff would have been in had [Lite Trix] done nothing” (Heard v City of New York, 82 NY2d 66, 72 [1993], rearg denied 82 NY2d 889 [1993]; see Van Hove v Baker Commodities, 288 AD2d 927 [2001]). We further conclude that Amendola established his entitlement to judgment as a matter of law, and plaintiffs failed to raise a triable issue of fact. Although landlords who retain control of the premises may be liable for defects (see Jones v Bartlett, 275 AD2d 956 [2000], lv denied 96 NY2d 705 [2001]; Young v Moran Props., 259 AD2d 1037, 1038 [1999]; see generally Putnam v Stout, 38 NY2d 607, 616-618 [1976]), we conclude that Amendola established that he did not retain sufficient control to remain liable for defects on the premises. Pursuant to the lease between Amendola and FOL, Amendola retained the right to “visit and examine [the] premises,” and to approve alterations, additions or improvements. The lease further provided that Amendola‘s agents and servants were permitted to enter the premises to make necessary repairs. We conclude that those lease provisions are insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord who reserves the right to enter the leased premises to make necessary repairs. “[A]n out-of-possession landlord who reserves that right may be held liable for injuries to a third party only where a specific statutory violation exists,” and there is no evidence in the record of a specific statutory violation (Regensdorfer v Central Buffalo Project Corp., 247 AD2d 931, 932 [1998], quoting Mendola v 2125 Seneca St., 237 AD2d 902, 903 [1997]), nor is there evidence that Amendola withheld his consent or approval with respect to the tenant‘s right to make any repairs (see Schlesinger v Rockefeller Ctr., 119 AD2d 462, 463 [1986]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ. ``` Wait, the order on page 1268 has the name “Debra Schwegler et al.” but the citation [801 NYS2d 873] is listed. The text starts with a partial sentence on 1268, which is from a different case. Per instructions, skip partial content from a previous case. The Schwegler caption is the start of the “MAIN” opinion. The Schwegler opinion starts with “Appeals from an order...” which is at the top of 1269. On page 1268, the Schwegler caption appears, followed by [801 NYS2d 873]. Then page 1269 starts. I will place the first page marker at 1269 because the content of the Schwegler opinion begins there. Final check on citations: Santo v Pick Quick Foods, 305 AD2d 399 [2003] -> cite=“305 AD2d 399” Feder v Tower Air, Inc., 12 AD3d 190, 191 [2004] -> cite=“12 AD3d 190” pinpoint=“191” O‘Connor v Lakeview Assoc., 306 AD2d 518, 519 [2003] -> cite=“306 AD2d 518” pinpoint=“518, 519” Heard v City of New York, 82 NY2d 66, 72 [1993] -> cite=“82 NY2d 66” pinpoint=“72” rearg denied 82 NY2d 889 [1993] -> cite=“82 NY2d 889” type=“short” (since it follows the full cite) Van Hove v Baker Commodities, 288 AD2d 927 [2001] -> cite=“288 AD2d 927” Jones v Bartlett, 275 AD2d 956 [2000] -> cite=“275 AD2d 956” lv denied 96 NY2d 705 [2001] -> cite=“96 NY2d 705” Young v Moran Props., 259 AD2d 1037, 1038 [1999] -> cite=“259 AD2d 1037” pinpoint=“1038” Putnam v Stout, 38 NY2d 607, 616-618 [1976] -> cite=“38 NY2d 607” pinpoint=“616-618” Regensdorfer v Central Buffalo Project Corp., 247 AD2d 931, 932 [1998] -> cite=“247 AD2d 931” pinpoint=“932” Mendola v 2125 Seneca St., 237 AD2d 902, 903 [1997] -> cite=“237 AD2d 902” pinpoint=“902, 903” Schlesinger v Rockefeller Ctr., 119 AD2d 462, 463 [1986] -> cite=“119 AD2d 462” pinpoint=“462, 463” Wait, on 1268, the Schwegler case info starts. The citation [801 NYS2d 873] is given. I should start there. However, the actual text of the opinion begins on 1269. I will include the citation from 1268 in the Case Information block and then start the body with page 1269. Wait, page 1268 has: [Black box] DEBRA SCHWEGLER et al., Appellants, v CITY OF NIAGARA FALLS, Defendant, A FESTIVAL OF LIGHTS, INC., Appellant, and FRANK A. AMENDOLA et al., Respondents. [801 NYS2d 873]— This is the header/caption. Then 1269 starts. The main body starts on 1269. One minor detail: “Santo v Pick Quick Foods, 305 AD2d 399 [2003]“. In the OCR it‘s “Santo v Pick Quick Foods, 305 AD2d 399 [2003]” but the text on the page says “(see Santo v Pick Quick Foods, 305 AD2d 399 [2003])“. Note that the OCR has “law Santo v Pick 305 AD2d 399 Con trary” which is jumbled. I will follow the visual screenshot text: “(see Santo v Pick Quick Foods, 305 AD2d 399 [2003])“. Also rejoining hyphenated words: “dam- ages” -> “damages” “electri- cal” -> “electrical” “posi- tion” -> “position” “Com- modities” -> “Commodities” “en- titled” -> “entitled” (wait, I don‘t see that one) “re- tained” -> “retained” “li- ability” -> “liability” “neces- sary” -> “necessary” “ev- idence” -> “evidence” “Regensdor- fer” -> “Regensdorfer” “ap- proval” -> “approval” Ready.

Notes

1
The footnote content. The Honorable Jane Williams, presiding.
2
Second footnote content.