Opinion
October 24, 1967
Appeal from an order and judgment of the Supreme Court, Schenectady County, dismissing the complaint at the end of the plaintiff-appellant's case. On February 9, 1963 appellant slipped and fell allegedly on some icy ruts in the driveway of a one-family dwelling controlled and maintained by the respondent. The trial court held, as a matter of law, that at the time of the accident, appellant was a licensee and not an invitee and that as such respondent had not breached any duty owing to her. There is no question that if the Trial Judge correctly found appellant to be a licensee liability could not be found (e.g. Wilder v. Ayers, 2 A.D.2d 354, affd. 3 N.Y.2d 725). Appellant urges, however, that at least there was a question of fact as to her status which should have been submitted to the jury. Appellant's status was controlled by her purpose in going upon the premises ( Mendez v. Goroff, 25 Misc.2d 1013, affd. 13 A.D.2d 705). If she came for benefit of the respondent or for both her and respondent's mutual benefit she would be an invitee ( Heskell v. Auburn Light, Heat Power Co., 209 N.Y. 86). However, if she was there solely for her own purposes she would be only a licensee ( Brister v. Flatbush Leasing Corp., 202 App. Div. 294). Here the record reveals that a binding contract for the purchase of the property had been signed by appellant's mother on January 23, 1963 and by the respondent on January 24, 1963, well before the accident. Thus appellant, no matter what her status with respect to the purchase contract, was not at the time of the accident a prospective purchaser who as such would be entitled to be treated as an invitee. Moreover, it is conceded that appellant's sole purpose for visiting the premises was to measure for drapes and to check and arrange for painting and redecoration in general, clearly personal purposes. On this state of the record we cannot say that a trier of facts could have arrived at a different conclusion than that of the trial court (CPLR 4404; Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241) and, accordingly, the order and judgment must be affirmed. Order and judgment affirmed, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.