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Gilmartin v. Tempestoso

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 16, 2000
273 A.D.2d 875 (N.Y. App. Div. 2000)

Summary

In Gilmartin, plaintiff was injured when he allegedly slipped and fell on a layer of ice on an exterior staircase of a building owned by Ulderico Tempestoso and Antonio Ciccotelli.

Summary of this case from Beach v. C.H. Wing Company, Inc.

Opinion

June 16, 2000.

Appeal from Order of Supreme Court, Erie County, Michalek, J. — Summary Judgment.

PRESENT: PINE, J.P., HAYES, WISNER, SCUDDER AND KEHOE, JJ.


Order unanimously affirmed without costs. Memorandum: Michael J. Gilmartin (plaintiff) was injured when he allegedly slipped and fell on a layer of ice on an exterior staircase of a building owned by Ulderico Tempestoso and Antonio Ciccotelli (defendants). Supreme Court properly denied the motion of defendants for summary judgment dismissing the complaint against them. In support of the motion, defendants submitted deposition testimony in which they each testified that they had orally informed the tenants that the tenants were responsible for ice and snow removal but that no such provision is contained in the one-page lease. In addition, Tempestoso testified that he visited the premises five or six times a month to collect rent and to ascertain that their rules were being followed. Contrary to the contention of defendants, they failed to meet their initial burden of establishing as a matter of law that they are out-of-possession landlords with no control over the premises and thus are not liable for the allegedly dangerous condition of the premises ( see, Cherubini v. Testa, 130 A.D.2d 380, 382; cf., Carvano v. Morgan, 270 A.D.2d 222 [decided Mar. 6, 2000]; see also, Young v. Moran Props., 259 A.D.2d 1037, 1038).

Also contrary to the contention of defendants, they failed to meet their initial burden of establishing as a matter of law that they had no constructive notice of the allegedly dangerous condition ( see, Mikolajczyk v. M.C. Morgan Contrs., 273 A.D.2d 864 [decided herewith]; Laster v. Port Auth. of N.Y. N.J., 251 A.D.2d 204, 205, lv denied 92 N.Y.2d 812) or that they had no duty to clear the ice because there was a snowstorm in progress when plaintiff fell ( see, Cerra v. Perk Dev., 197 A.D.2d 851).


Summaries of

Gilmartin v. Tempestoso

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 16, 2000
273 A.D.2d 875 (N.Y. App. Div. 2000)

In Gilmartin, plaintiff was injured when he allegedly slipped and fell on a layer of ice on an exterior staircase of a building owned by Ulderico Tempestoso and Antonio Ciccotelli.

Summary of this case from Beach v. C.H. Wing Company, Inc.

In Gilmartin, the defendant visited the premises five or six times a month to collect rent and to ascertain that their rules were being followed.

Summary of this case from Beach v. C.H. Wing Company, Inc.
Case details for

Gilmartin v. Tempestoso

Case Details

Full title:MICHAEL J. GILMARTIN AND PEARL GILMARTIN, PLAINTIFFS-RESPONDENTS, v…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 16, 2000

Citations

273 A.D.2d 875 (N.Y. App. Div. 2000)
709 N.Y.S.2d 298

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