Castellitto v. Atlantic & Pacific Co.
Cases that cite this one
11 later published cases cite this decision.
- Moser v. Lavipour & Co. (Appellate Division of the Supreme Court of New York 2006)
- Giulini v. Union Free School District 1 (Appellate Division of the Supreme Court of New York 2010)
- Riley v. Lake Road Condominiums (Appellate Division of the Supreme Court of New York 2008)
- Williams v. Long Island Rail Road (Appellate Division of the Supreme Court of New York 2006)
- Tresgallo v. Danica, L. L. C. (Appellate Division of the Supreme Court of New York 2001)
- Levy v. Cumberland Farms, Inc. (Appellate Division of the Supreme Court of New York 2000)
- Bonilla v. Starrett City at Spring Creek (Appellate Division of the Supreme Court of New York 2000)
- Fandy Corp. v. Lung-Fong Chen (Appellate Division of the Supreme Court of New York 1999)
- Laventure v. McKay (Appellate Division of the Supreme Court of New York 1999)
- Thomas v. Phillips (Appellate Division of the Supreme Court of New York 1998)
- Roman v. Konis (Appellate Division of the Supreme Court of New York 1998)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered December 9, 1996, which granted the defendant’s motion for summary judgment dismissing the complaint, and
Ordered that the appeal from the order entered February 6, 1997, is dismissed, as no appeal lies from an order denying re-argument; and it is further,
Ordered that the order entered December 9, 1996, is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff fell when her foot became “stuck on something” on the ground of a parking lot owned by the defendant. The plaintiff did not observe any defect on the parking lot property before or after her fall, which rendered her “practically unconscious”.
In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon its property, it must be established that a defective condition existed, and that the landowner either affirmatively created the condition, or had actual or constructive notice of its existence (see, Kuchman v Olympia & York, 238 AD2d 381). The Supreme Court was correct in granting summary judgment to the defendant, since there was no evidentiary proof in admissible form sufficient to raise a material issue of fact that the plaintiff fell as a result of a defective condition on the defendant’s property (see, Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967; Zuckerman v City of New York, 49 NY2d 557, 562).
The plaintiff’s motion, denominated as one to “renew and reargue”, was, in effect, a motion to reargue, since the purportedly new material could have been submitted in opposition to the original motion for summary judgment (see, Taylor v Brooklyn Hosp., 187 AD2d 714, 715; Echeverri v Flushing Hosp. & Med. Ctr., 123 AD2d 818, 819). As no appeal lies from an order denying reargument, the appeal from the order entered February 6, 1997, must be dismissed (see, Matter of State Farm Mut. Auto. Ins. Co. v Barbera, 161 AD2d 599). Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.