Burke v. Village of Malone
Court: Appellate Division of the Supreme Court of the State of New York; January 21, 1998; New York; State Appellate Court
An appeal was filed concerning a January 27, 1997 order from the Supreme Court of Franklin County that granted summary judgment to defendant Kay Glasgow, dismissing the complaint against her. Glasgow owned a building leased to Joseph Calipari, who operated a retail music store. On April 4, 1994, Calipari hosed down the sidewalks in front of his store, and shortly thereafter, at approximately 10:00 a.m., plaintiff John J. Burke slipped and fell while stepping from the sidewalk to the street, resulting in a fractured ankle. Burke claimed the fall was caused by ice formed from the water sprayed on the sidewalk, despite not seeing any ice or defects prior to his fall. Glasgow argued that she lacked sufficient control over the leased premises to incur liability. The court agreed, noting that even if she retained some control, there was no evidence that she had actual or constructive notice of the icy condition that caused Burke's fall. Constructive notice requires that a defect be visible and apparent for enough time before the incident for the owner to discover and address it. No evidence indicated that Glasgow was present at the premises on the day of the accident, nor was there sufficient time for her to have acquired constructive knowledge of the icy condition. Additionally, there was no indication that anyone observed the condition before the accident. Burke also suggested on appeal that an implied contract existed between Glasgow and Calipari for sidewalk maintenance, making Glasgow vicariously liable for Calipari’s negligence. However, this argument was not properly preserved, and the record did not support any agreement for exterior maintenance. The order was affirmed with costs.