Summary
holding that a broker "whose only connection to the property was listing it for sale and showing it to prospective buyers, met their initial burden on their [summary judgment] motion by establishing that they did not occupy, own, or control the [seller's] home and did not employ it for a special use, and thus did not owe plaintiff a duty of care"
Summary of this case from DeSousa v. Iowa Realty Co.Opinion
2012-06-8
Mary J. KNIGHT, Plaintiff–Respondent, v. REALTY USA.COM, INC., Dianne Shaw, Realty USA, Defendants–Appellants, Frank Robertaccio, et al., Defendants.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Michelle M. Davoli of Counsel), for Defendants–Appellants. John J. Delmonte, Niagara Falls, for Plaintiff–Respondent.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Michelle M. Davoli of Counsel), for Defendants–Appellants. John J. Delmonte, Niagara Falls, for Plaintiff–Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries she sustained when, during an open house at a home owned by defendants Frank Robertaccio and Kathleen Robertaccio, she tripped and fell over a platform located in the basement. The Robertaccios had hired defendant Realty USA.com, Inc. and defendant Dianne Shaw, Realty USA, a real estate agent (collectively, defendant brokers) to sell their home. Shaw arranged the open house with the help of her assistant, and it was administered by a hostess employed by Shaw. Neither the Robertaccios nor Shaw were present during the open house.
As limited by their brief, defendant brokers contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint against them and in granting plaintiff's cross motion for leave to amend the summons and complaint. We agree. With respect to the motion for summary judgment, it is well settled that “ ‘[l]iability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of [the] premises' ” ( Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715). “ ‘The existence of one or more of these elements is sufficient to give rise to a duty of care[, but w]here none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property’ ” ( id.). Defendant brokers, whose only connection to the property was listing it for sale and showing it to prospective buyers, met their initial burden on their motion by establishing that they did not occupy, own, or control the Robertaccios' home and did not employ it for a special use, and thus did not owe plaintiff a duty of care ( see Rackowski v. Realty USA, 82 A.D.3d 1475, 1476, 920 N.Y.S.2d 435;Eichelbaum v. Douglas Elliman, LLC, 52 A.D.3d 210, 859 N.Y.S.2d 145). In response thereto, plaintiff failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Contrary to plaintiff's contentions, the evidence does not establish that Shaw assumed a duty to repair the platform or to warn others about it ( see generally Gauthier v. Super Hair, 306 A.D.2d 850, 851–852, 762 N.Y.S.2d 736), nor does it establish that defendants may be liable under a “special use” theory of liability ( see generally Kaufman v. Silver, 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417).
We further conclude that the court erred in granting plaintiff's cross motion for leave to amend her summons and complaint to raise additional causes of action sounding in “general negligence” and to add Shaw's employee who hosted the open house as a defendant ( see generallyCPLR 3025[b] ). As previously noted, defendants established that they did not owe plaintiff a duty of care with respect to any defective or dangerous conditions on the premises, and that principle applies equally to plaintiff's proposed causes of action, which likewise are based in negligence. It also applies equally to Shaw's employee, whose sole connection to the premises was hosting the open house, allowing plaintiff entry into the home, and showing her where to access the basement ( see Rackowski, 82 A.D.3d at 1476, 920 N.Y.S.2d 435;Eichelbaum, 52 A.D.3d 210, 859 N.Y.S.2d 145). Inasmuch as the proposed amendments were “patently lacking in merit” ( Letterman v. Reddington, 278 A.D.2d 868, 718 N.Y.S.2d 503;see Nastasi v. Span, Inc., 8 A.D.3d 1011, 1013, 778 N.Y.S.2d 795), the court erred in granting plaintiff's cross motion for leave to amend her summons and complaint ( cf. McFarland v. Michel, 2 A.D.3d 1297, 1300, 770 N.Y.S.2d 544;see generally C–Kitchens Assoc., Inc. v. Travelers Ins. Cos. [Travelers Ins. Co.], 15 A.D.3d 905, 907, 789 N.Y.S.2d 567;Boccio v. Aspin Trucking Corp., 93 A.D.2d 983, 983, 461 N.Y.S.2d 661).
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion of defendants-appellants is granted, the complaint against them is dismissed, and the cross motion of plaintiff is denied.