        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1438
CA 12-01105
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


LEE T. HENDRYX AND SHARON HENDRYX,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

RICHARD M. PAYNE, SUZANNE PAYNE, MARK NOLAN,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.
---------------------------------------------
RICHARD M. PAYNE, SUZANNE PAYNE AND ENCHANTED
VALLEY RENTALS, LLC, THIRD-PARTY
PLAINTIFFS-RESPONDENTS,

                    V

MARK NOLAN, THIRD-PARTY DEFENDANT-APPELLANT.


BRIAN P. FITZGERALD, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS AND THIRD-PARTY PLAINTIFFS-RESPONDENTS RICHARD
M. PAYNE AND SUZANNE PAYNE.

BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-APPELLANT MARK NOLAN AND THIRD-PARTY DEFENDANT-APPELLANT.

FRANCIS M. LETRO, BUFFALO (RONALD J. WRIGHT OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal and cross appeal from an order of the Supreme Court,
Cattaraugus County (Gerald J. Whalen, J.), entered December 22, 2011.
The order, among other things, denied in part the motion of
defendants-third-party plaintiffs Richard M. Payne and Suzanne Payne
for summary judgment dismissing the amended complaint against them and
denied the cross motion of defendant-third-party defendant, Mark
Nolan, for summary judgment dismissing the amended complaint and the
third-party complaint against him.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in its entirety
and dismissing the amended complaint against defendants-third-party
plaintiffs Richard M. Payne and Suzanne Payne, and by granting the
cross motion in part and dismissing the amended complaint, as
amplified by the bill of particulars, insofar as it alleges that
defendant-third-party defendant, Mark Nolan, was negligent in failing
to hold the ladder, and as modified the order is affirmed without
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                                                         CA 12-01105

costs.

     Memorandum: Plaintiffs commenced this negligence action seeking
damages after Lee T. Hendryx (plaintiff) fell from a ladder owned by
defendant-third-party defendant, Mark Nolan, on property owned by
defendants-third-party plaintiffs Richard M. Payne and Suzanne Payne.
We note as background that Nolan was hired by the Paynes to power wash
their house, and plaintiff agreed to help Nolan. Nolan set up the
ladder with one set of feet on a cement walkway and the other set on
the grass. The ladder was next to an aluminum awning that extended
over the front steps of the house. As plaintiff climbed the ladder
and began using the power washer, Nolan held onto the ladder. When
plaintiff was finished, he handed the wand of the power washer to
Nolan, and Nolan let go of the ladder and turned to shut off the power
washer. As plaintiff began to descend the ladder, it “rocked” toward
the awning and, when plaintiff attempted to steady himself by grabbing
the awning, the right side of the awning detached from the house and
plaintiff fell to the ground. As relevant to this appeal, the Paynes
moved for summary judgment dismissing the amended complaint against
them and Nolan cross-moved for summary judgment dismissing the amended
complaint and the third-party complaint against him. Supreme Court
granted in part and denied in part the motion with respect to the
Paynes (hereafter, motion) and denied the cross motion. The Paynes
now appeal, and Nolan cross-appeals.

     Addressing first the Paynes’ appeal, we agree with them that the
court should have granted their motion in its entirety, and we
therefore modify the order accordingly. Plaintiffs alleged that the
Paynes were negligent in allowing an unsafe and dangerous condition to
exist on their property, i.e., a defective walkway and a defective
awning. With respect to the alleged defective cement walkway,
plaintiff testified at his deposition that he was unsure of what
caused the ladder to “rock,” but he speculated that the walkway
“rocked.” The Paynes established as a matter of law that the walkway
was not defective, and plaintiffs failed to raise a triable issue of
fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Although there was a gap in the walkway where it abutted the steps, as
well as a crack in another part of the walkway, the Paynes submitted
evidence establishing that the walkway did not tilt, rock, or move in
any way. In opposition to the motion, plaintiffs’ expert opined that
the walkway was in “disrepair” as evidenced by the gap and the crack,
but never stated that the walkway rocked.

     With respect to the alleged defective awning, we agree with the
Paynes that plaintiff’s use of the awning to attempt to steady himself
when the ladder rocked was “a superseding cause of such an
extraordinary nature that it was not an occurrence which should have
been guarded against in the exercise of reasonable care in maintaining
the property in a safe condition” (Perez v Rodriguez, 40 AD3d 1062,
1063; see Freeman v Cobos, 240 AD2d 698, 699).

     Addressing next Nolan’s cross appeal, we note that plaintiffs
alleged that Nolan was negligent in, inter alia, his placement of the
ladder. In denying the cross motion, the court held that questions of
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                                                         CA 12-01105

fact existed with respect to “the set up of the ladder, together with
the securing or lack of securing the ladder while plaintiff was upon
it on the day of the accident.” To the extent that the amended
complaint, as amplied by the bill of particulars, alleges that Nolan
was negligent in failing to hold the ladder, we conclude that the
court erred in denying that part of Nolan’s cross motion seeking
summary judgment dismissing that claim. We therefore further modify
the order accordingly. We agree with Nolan that he did not undertake
or breach any duty to hold the ladder after he had first done so (see
Barnes v Sanders, 269 AD2d 811, 811). Indeed, “no such duty was
undertaken or breached . . . [inasmuch as Nolan’s] conduct did not
place plaintiff ‘in a more vulnerable position than he would have been
in had [Nolan] never taken any action at all’ ” (id.). We reject
Nolan’s contention, however, that the court erred in denying his cross
motion with respect to the claim that he negligently placed the ladder
inasmuch as there is a triable issue in that respect (cf. Marsh v
Marsh, 45 AD3d 1100, 1101).




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
