Stancarone v. SullivanStancarone v. Sullivan
Scaffidi & Associates, New York, NY (Anthony J. Scaffidi of counsel), for appellants.
Cuomo LLC, Mineola, NY (Matthew A. Cuomo of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Victor J. Alfieri, Jr., J.), dated December 30, 2016. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the cause of action to recover damages for common-law negligence, so much of the cause of action to recover damages pursuant to
ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants’ motion which were for summary judgment dismissing the cause of action to recover damages for common-law negligence, so much of the cause of action to recover damages pursuant to
In this action, the plaintiffs seek to recover damages for injuries the plaintiff Joseph Stancarone (hereinafter the injured plaintiff) alleges he sustained when he slipped and fell on the defendants’ residential property while performing his assigned duties as a police officer. The complaint and bill of particulars asserted, inter alia, causes of action to recover damages for common-law negligence and pursuant to
The defendants moved for summary judgment dismissing the complaint, submitting, among other things, the deposition testimony of the injured plaintiff and of the defendant Hugh Sullivan, and a certified weather report from the date of the incident. The injured plaintiff testified in relevant part that at the time of his fall on November 9, 2011, he was patrolling the defendants’ property pursuant to the defendants’ request for such a patrol due to their extended absence from the premises and reports of trespassers on the property. The injured plaintiff testified that he fell while descending a flight of steps in the defendants’ backyard. According to the injured plaintiff, the steps were illuminated only by the flashlight that he was carrying. He further testified that after his fall, he observed a “slimy almost like dead moss or ice-like substance” covering the step upon which he had slipped. He also testified that he “went to [his] right side as to reach for a railing,” but he did not remember a railing being there. Sullivan testified that while the defendants were away from the property, they employed others to “keep[ing] an eye on the house,” including landscapers who “would do whatever needed to be done to maintain the . . . exterior of the property.” He further testified that there was lighting around the pathways on the property at “key junctures and areas, like steps,” and that moss generally tended not to accumulate on the steps. The certified weather reports submitted by the defendants reflected that the temperature at the time of the incident was above freezing.
The plaintiffs opposed the defendants’ motion for summary judgment and cross-moved for summary judgment on the issue of liability on their
Moreover, we disagree with the Supreme Court‘s determination granting that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages pursuant to
However, we agree with the Supreme Court that the plaintiffs were not entitled to summary judgment on the issue of liability
The plaintiffs’ remaining contention is without merit (see
Accordingly, the foregoing causes of action must await resolution at trial.
MASTRO, J.P., LEVENTHAL, SGROI and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court