|
Publications : Personal injury, retaining wall, fall, piece broke - JOHN MILLER, et al., appellants, v. MIKE MICHAELS, respondent. (Lois Law) (Publication-132)
JOHN MILLER, et al., appellants, v. MIKE MICHAELS, respondent.
Appellate Division of the Supreme Court of New York, Second Department.
Decided on November l8, 2008.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated July 17, 2007, which granted the defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
Kiley, Kiley & Kiley, PLLC, Great Neck, N.Y. (James D. Kiley of counsel), for appellants.
Hammill, O'Brien, Croutier, Dempsey & Pender, P.C., Syosset, N.Y. (Maureen Quinn of counsel), for respondent.
ROBERT A. LIFSON, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, ARIEL E. EELEN, JJ.
DECISION & ORDER
The plaintiff John Miller (hereinafter Miller) allegedly sustained injuries when he had one foot on a retaining wall made of railroad ties and the other on the ground, and a piece of the railroad tie broke off, causing him to fall. The retaining wall was on property owned by the defendant, and it bordered the dividing line between the plaintiffs' property and the defendant's property. Photographs of the retaining wall showed that it was in a deteriorated condition. The defendant leased the property to tenants, pursuant to oral agreements. At his deposition, the defendant testified that the tenants were only responsible for mowing the lawn, and that if other maintenance work was needed he hired outside contractors to perform it. The defendant moved for summary judgment dismissing the complaint on the ground that, inter alia, he was an out-of-possession landlord who did not retain sufficient control over the property such that he could be held liable for Miller's injuries. "An out-of-possession landlord is generally not responsible for injuries that occur on its premises unless it has retained control over the premises or is contractually obligated to maintain or repair the alleged hazard" (Deerr'Matos v Ulysses Upp, LLC, 52 AD3d 645, 645). Here, the defendant failed to make a prima facie showing that he did not retain sufficient control of the premises to impose liability upon him for Miller's injuries. Moreover, the defendant failed to establish, prima facie, that he lacked constructive notice of a dangerous condition, which, in the exercise of reasonable care, he should have discovered and remedied (see Gordon v American Museum of Natural History, 67 NY2d 836). Accordingly, the defendant's motion for summary judgment should have been denied "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 6§];_NY2d $5;). LIFSON, J.P., SANTUCCI, BALKIN and BELEN, JJ., concur.
For more information visit: Lois Law. |
View more 'Publications' from Kiley Law Firm:
| Personal injury, retaining wall, fall, piece broke - JOHN MILLER, et al., appellants, v. MIKE MICHAELS, respondent. (Lois Law) (Publication-132, 2008-Nov)
Read more... |
| Premises Liability, Warehouse's visitor claimed he tripped on high step, Dangerous Condition, Trip and Fall - Robert & Julie Ferraris v. Nussdorf Associates & Quality King Distributors, Inc., No. 13803/04 (Verdict Search) (Publication-126, 2007-Jan)
Read more... |
| Personal injury, slip and fall, wet leaves - BIBI RAKEEBA MISTR, Appellant, v. BEACH HAVEN APARTMENT No. l, INC., Respondent. (Lois Law) (Publication-131, 2006-Sep)
Read more... |
| Murphy v. Lawrence Towers Apartments, 15 A.D.3d 371 (Reported Case) (Publication-133, 2005-Feb)
Read more... |
| Motor Vehicle, Woman alleged that auto collision caused disc injuries, Passenger - Triffina Coley v Rooney Motors, Ltd, Neil Bond, as Executor of the Estate of Anthony Lucatorto; and Beverly Williams, No. 20830/00 (Verdict Search) (Publication-125, 2003-Sep)
Read more... |
| Teacher's Assistant tripped on unlevel floor - Lorraine Walsh and Charles Walsh v. Facchin & Facchin, Ltd. and St. Pauls Church, College Point, No. 23592/OO (Verdict Search) (Publication-121, 2003-Jun)
Read more... |
| Motor Vehicle, Passenger - Andre Primus V Marco Sloan; Boston Coach - N.J. Corp; Eloston Coach Connection Corp, and FTM Servi, No. 32107/00 (Publication-123, 2002-Feb)
Read more... |
| Motor Vehicle, Left Turn - Wesley Shirley v. Meredith and Barry Kaminsky, No 23663/98 (Verdict Search) (Publication-120, 2001-May)
Read more... |
| 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, 2001-Mar)
Read more... |
| Motor Vehicle, Stop Sign - John Petropolis v Dennis Montenez;, No. 22973/99 (Verdict Search) (Publication-122, 2000-Oct)
Read more... |
| Assault, Hotel - CYZIO v. RIHGA INTL. U.S.A., 172 Misc.2d 363 (1997) (Lois Law) (Publication-127, 1997-Mar)
Read more... |
| Motor Vehicle, William Flynn v. Benjamin Augustine and Jacob Singer Sons, Inc., No. 029765/92 (Verdict Search) (Publication-124, 1995-Sep)
Read more... |
|
|
Represented by Donald Kiley Jr., concertgoer claims he was "attacked and assaulted" by fellow unprovoked concertgoers who felt "comfortable to engage in mischief and physical violence" at the encouragement of the rappers. Read
more... |
|
HIGHLIGHT: Kiley Law Firm makes
the front page of the New York Law Journal
Read more... |
Click Here to submit
a payment to Kiley, Kiley & Kiley, PLLC.

|
|
|