Silverberg v. PalmerinoSilverberg v. Palmerino
The residential properties located at 899 and 895 Mercer Street in the City of Albany, owned by defendants Robert Palmerino and Deborah Palmerino (hereinafter collectively referred to as defendants) and defendant Muriel Hausler, respectively, share a common driveway. On January 21, 2004, plaintiff—then a second-floor tenant of defendants—slipped and fell on ice in the driveway, prompting her to commence this action against Hausler and defendants alleging that the injuries she sustained were the result of their negligence in maintaining the driveway. Supreme Court (Teresi, J.) granted Hausler’s motion for summary judgment dismissing the complaint against her on the basis that she owed no duty of care to her neighbors’ tenant.*
Following a trial, which proceeded solely against defendants, a jury determined that plaintiff’s fall was 60% the result of her own negligence and 40% the result of defendants’ negligence. The jury’s $15,000 award to plaintiff for past pain and suffering was consequently reduced—after factoring in her comparative fault—to $6,000, and she was awarded no damages for future pain and suffering. Plaintiff’s motion to set aside the jury verdict was denied by Supreme Court (McNamara, J.) and these consolidated appeals—wherein plaintiff asserts that Supreme Court erroneously granted Hausler’s motion for summary judgment and that the jury’s determinations were against the weight of the evidence—ensued.
Inasmuch as we agree that Hausler was improperly awarded summary judgment, we must reverse and order a new trial (see Gadani v Dormitory Auth. of State of N.Y., 50 AD3d 1303, 1304 [2008]). A movant seeking summary judgment “is required to establish by competent and admissible evidence a prima facie entitlement to [such] judgment” (Howard v J.A.J. Realty Enters., 283 AD2d 854, 855 [2001]). Here, Hausler’s motion for summary judgment was predicated exclusively on her assertion
It is well settled that, in addition to ownership, occupancy or special use, liability for a dangerous or defective condition on property may be predicated upon a party’s exercise of control over the premises on which the accident occurred (see Saunders v Bryant’s Towing, 27 AD3d 992, 993-994 [2006]). Here, in opposition to Hausler’s motion for summary judgment, plaintiff and defendants offered evidence that Hausler had assumed some responsibility for maintenance of the entire driveway, including snow removal. Specifically, the sworn written statements and/or deposition testimony of Hausler and defendants demonstrated that they had entered into a relationship whereby they shared maintenance responsibilities for the driveway, including repair, repaving and snow removal, and that they evenly shared the costs thereof.
Further, Hausler acknowledged that the driveway was “a hill,” which required the regular administration of salt in the winter because driving up it was “always a problem.” Hausler also testified at her deposition that, prior to her husband’s death, he had been the one to hire a contractor to remove the snow from the driveway. The same contractor performed the removal services in January 2004. Although it was unclear who actually hired the contractor in January 2004, Hausler testified that she paid him in full for his snow removal services and that defendants reimbursed her for half of the costs at the end of the year. She further stated that she did not expect the contractor to distribute salt, sand or deicer on the driveway; rather, if it was too icy, “somebody,” including herself, would administer such materials. Notably absent from Hausler’s deposition testimony was any indication that her attempts to deice the driveway were strictly limited to “her” side. Indeed, she indicated that the driveway was so narrow she “hit the walls” when driving up it.
“Viewing the [foregoing] evidence in a light most favorable to plaintiff and affording her every favorable inference” (Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [2007] [citation omitted]), we conclude that Hausler’s motion for sum
Mercure, J.P., Kane and Malone Jr., JJ., concur. Ordered that the order and judgment are reversed, on the law, motion denied and matter remitted to the Supreme Court for a new trial, with costs to abide the event. [See 2007 NY Slip Op 31756(U).]