Opinion
374 CA 20-01041
07-09-2021
Michael JULIUS and Kelly Julius, Plaintiffs-Appellants, v. COUNTY OF ERIE, Defendant-Respondent.
RICHARD S. BINKO, CHEEKTOWAGA, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
RICHARD S. BINKO, CHEEKTOWAGA, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the complaint is reinstated, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Michael Julius (plaintiff) while he was delivering a package to the Erie County Holding Center (Holding Center). Defendant moved for summary judgment dismissing the complaint on several grounds, and Supreme Court, relying in part on Metcalf v. County of Erie, 173 A.D.3d 1799, 104 N.Y.S.3d 815 (4th Dept. 2019), granted the motion on the ground that defendant owed no duty of care to plaintiffs. In light of its determination, the court did not consider the alternative grounds for summary judgment raised in defendant's motion.
We agree with plaintiffs that defendant failed to meet its initial burden of establishing as a matter of law that it owed no duty to plaintiffs, and the court thus erred in granting the motion on that ground. Indeed, defendant's own submissions in support of the motion raise triable issues of fact whether it owed plaintiffs a duty of care inasmuch as they establish that maintenance workers from the Holding Center, who were employed by defendant, dumped allegedly toxic liquid in a parking lot behind the Holding Center that came into contact with plaintiff as he was walking through the parking lot to make his delivery. Further, because plaintiffs’ claim arises from the actions of maintenance workers employed by defendant during their performance of a maintenance function in a parking lot owned by defendant, the court's reliance on Metcalf is misplaced. The incident here did not involve an inmate or the actions of a Sheriff's deputy (see id. at 1800, 104 N.Y.S.3d 815 ), and defendant's submissions do not establish that plaintiff's injury arises from a jail condition over which the Sheriff maintained custody and control (cf. Snyder v. Plank , 77 A.D.3d 1332, 1332-1333, 909 N.Y.S.2d 246 [4th Dept. 2010] ; see generally Dugan v. County of Rensselaer , 67 N.Y.2d 979, 980-981, 502 N.Y.S.2d 1001, 494 N.E.2d 106 [1986] ).
The court did not address the alternative grounds for summary judgment raised in the motion, and we therefore remit the matter to Supreme Court to "consider those grounds and determine the ... motion anew" ( Lundy Dev. & Prop. Mgt., LLC v. Cor Real Prop. Co., LLC , 181 A.D.3d 1180, 1181, 118 N.Y.S.3d 478 [4th Dept. 2020] ).