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Where the Complaint Alleged Only that the Driveway Was Defective and the Complaint Against the Company Which Renovated the Driveway Was Dismissed, the Complaint Against the Property Owners Should Have Been Dismissed As Well–There Was No Viable Theory for Liability on the Part of the Property Owners

The Second Department determined Supreme Court should have granted defendant property owners’ motion for a judgment as a matter of law after the close of proof. Plaintiff, who tripped over the lip on defendants’ driveway, alleged the driveway was defective. After proof was closed, Supreme Court dismissed the complaint against the company which renovated the driveway, but denied the property owners’ motion to dismiss. Because plaintiff’s only theory was that the driveway was defective, and the property owners could only be liable for a hazardous condition caused by a failure to properly maintain the property, the complaint against the property owners should have been dismissed as well:

Dismissal of an action insofar as asserted against a contractor who performs work on premises does not mandate dismissal of the action insofar as asserted against the owner of the premises, since the owner has a duty to maintain the premises in a reasonably safe condition … . Here, however, the plaintiff’s theory of liability was that the driveway was defective. …[T]here was no evidence that the lip of the driveway was in a hazardous condition. Therefore, it was inconsistent to direct the dismissal of the complaint insofar as asserted against [contractor] while denying such relief to the appellants as homeowners, since no viable alternative theory of liability was asserted against the appellants … . Cioffi v Klein, 2015 NY Slip Op 06704, 2nd Dept 9-2-15

 

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