Publications : Personal injury, trip and fall - MILDRED SALZBERG, PLAINTIFF-RESPONDENT, v. HADASAH FUTERNICK, ETC., ET AL., APPELLANTS, DAYTON CONSTRUCTION, INC., ET AL., DEFENDANTS-RESPONDENTS (Lois Law) (Publication-128)
New York Appellate Division Reports
MILDRED SALZBERG, PLAINTIFF-RESPONDENT, v. HADASAH FUTERNICK, ETC., ET AL., APPELLANTS, DAYTON CONSTRUCTION, INC., ET AL.,
Appellate Division of the Supreme Court of New York, Second Department.
Argued February 15, 2001.
March 12, 2001.
In an action to recover damages for personal injuries, the defendants Hadasah Futernick, as Executrix of the Estate of Benjamin Futernick, Carol Futernick, and Janice Futernick appeal from stated portions of an order of the Supreme Court, Queens County (Weiss, J.), dated January 10, 2000, which, inter alia, denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them, or for summary judgment on their cross claim against the defendants Dayton Construction, Inc., and Blockbuster Videos, Inc., for indemnification. Richard J. Baldwin, Hauppauge, N.Y. (Gregory P. Lewis of counsel), for appellants.
Kiley, Kiley & Kiley, Great Neck, N.Y. (James D. Kiley of counsel), for plaintlff-respondent.
Herzfeld & Rubin, P.C., New York, N.Y. (Herbert Rubin, David B. Hamm, Harold M. Weidenfeld, and Linda M. Brown of counsel), for defendant-respondent Blockbuster Videos, Inc.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, LEO E. McGINITY, NANCY E. SMITH, JJ.
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs. The plaintiff allegedly tripped and fell on an uneven sidewalk in front
of a Blockbuster Video, Inc. (hereinafter Blockbuster), store. The plaintiff brought this action against Blockbuster, Hadasah Euternick, as
Executrix of the Estate of Benjamin Futernick, Carol Euternick, and Janice Euternick as successors in interest to the owner of the property,
and Dayton Construction, Inc. (hereinafter Dayton). Dayton was the independent contractor which constructed the premises, including the
sidewalk. The complaint alleged that the sidewalk was owned by the Futernick defendants, and that the defect in the sidewalk was caused by
its improper construction and/or the improper preparation of the soil beneath it. Contrary to the appellants' contention, the Supreme Court properly
denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them or for summary judgment on their cross
claims against Dayton and Blockbuster for indemnification. As landlords, the appellants had a non-delegable duty to members of the general public
to keep their premises safe (see, Richardson v. Schwager Page 468 Assocs., 249 A.D.2d 531; Thomassen v. J & K Diner, 152 A.D.2d 421). Further, lack
of notice of the defect would not allow them to avoid liability where the plaintiff contends that the initial construction or design of the sidewalk
was defective (see, Richardson v. Schwager Assocs., supra). The appellants' remaining contentions are without merit.
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