TORRE v. PAUL BURKE CONSTRUCTION INC

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

Jeanne R. TORRE, Appellant, v. PAUL A. BURKE CONSTRUCTION, INC., D/B/A Niagara Towers Company, Respondent.

Decided: April 25, 1997

Before DENMAN, P.J., and GREEN, LAWTON, BALIO and FALLON, JJ. Grossman, Levine & Civiletto by William Zarr, Samuel Civiletto, Niagara Falls, for Appellant. Kenney, Kanaley, Shelton & Liptak, LLP by Michael Kanaley, Buffalo, for Respondent.

Plaintiff, a tenant in an apartment building owned and operated by defendant, commenced this action to recover for personal injuries sustained when another tenant, John Wadell, a double amputee who has artificial legs and walks with the assistance of canes, lost his balance and fell on plaintiff.   Plaintiff alleges that defendant breached its duty to protect her from such hazard because defendant had actual or constructive knowledge of Wadell's physical condition.

Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.   In opposition to the motion, plaintiff failed to establish that defendant had actual or constructive knowledge that Wadell had previously fallen on others, or of a risk that Wadell would injure another tenant.

 In any event, defendant had no duty to control Wadell's conduct for the protection of other tenants.   A landowner is required to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury, the seriousness of potential injury, and the burden of avoiding that risk (see, Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493;  Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868).   In special circumstances, a landowner may have a duty to control the conduct of third parties for the protection of others using or frequenting the property (see, DiPonzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d 377, 679 N.E.2d 616;  Johnson v. Slocum Realty Corp., 191 A.D.2d 613, 614-615, 595 N.Y.S.2d 244).   However, the duty to control is commensurate with the authority and opportunity to control (see, Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4, rearg. denied 72 N.Y.2d 953, 533 N.Y.S.2d 60, 529 N.E.2d 428;  Johnson v. Slocum Realty Corp., supra, at 614-615, 595 N.Y.S.2d 244).  Here, it would be excessively burdensome to require defendant to monitor Wadell's conduct, and defendant has no authority to force Wadell to use a wheelchair.   Despite plaintiff's assertion that defendant should have evicted Wadell, it is well established that “[a] reasonable opportunity or effective means to control a third person does not arise from the mere power to evict” that person as tenant (Siino v. Reices, 216 A.D.2d 552, 553, 628 N.Y.S.2d 757;  see, Blatt v. New York City Hous. Auth., 123 A.D.2d 591, 593, 506 N.Y.S.2d 877, lv. denied 69 N.Y.2d 603, 512 N.Y.S.2d 1026, 504 N.E.2d 396).

Order unanimously affirmed without costs.

MEMORANDUM: