BRUHNS v. R.J. Smith Realtors, Inc., Respondent.

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

Marion BRUHNS, et al., Appellants, v. Gaetano ANTONELLI, Defendant, R.J. Smith Realtors, Inc., Respondent.

Decided: November 23, 1998

Before MANGANO, P.J., JOY, FRIEDMANN and GOLDSTEIN, JJ. Benjamin Ostrer & Associates, P.C., Chester, N.Y. (Benjamin Ostrer of counsel), for appellants. David B. Sall, Poughkeepsie, N.Y. (Paul Caltagirone of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Orange County (Owen, J.), dated November 24, 1997, which granted the motion of the defendant R.J. Smith Realtors, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The injured plaintiff, a licensed real estate broker, was injured on the subject premises while showing the premises to prospective buyers.   The injured plaintiff had gained access to the premises from the defendant R.J. Smith Realtors, Inc. (hereinafter the respondent), who was the listing real estate agent for the property.   The respondent moved for summary judgment arguing, inter alia, that it owed no duty to the injured plaintiff.

 As a general rule, liability for a dangerous condition on property is predicated upon ownership, occupancy, control, or special use (see, Millman v. Citibank, 216 A.D.2d 278, 627 N.Y.S.2d 451).   Upon our review of the record, we find no evidence that would raise an issue of fact as to any of these elements.   The respondent owed no duty of care to the injured plaintiff, and may not be held liable for the existence of an allegedly dangerous condition on the property.   Thus, the Supreme Court properly granted summary judgment dismissing the complaint insofar as asserted against the respondent.

MEMORANDUM BY THE COURT.

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