Opinion
No. 66-745.
June 13, 1967.
Appeal from the Circuit Court, Dade County, Francis X. Knuck, J.
Feldman Abramson, Miami, for appellant.
Sherouse Corlett, Miami, and Michael D. Sikes, Orlando, Knight, Underwood, Peters, Hoeveler Pickle, Miami, for appellee.
Before HENDRY, C.J., and PEARSON and SWANN, JJ.
The plaintiff was injured when a section of a ceiling fell on him while he was a customer in a store. He sued the operator of the store who had a leasehold interest and the landlord who owned the fee. After discovery, the trial court entered a summary final judgment for the defendant-landlord. On this appeal it is urged that the summary judgment was erroneously entered because there was a genuine issue of material fact as to notice to the landlord of the defect and his responsibility to repair it.
The summary judgment was entered upon authority of the rule stated in King v. Cooney-Eckstein Co., 66 Fla. 246, 63 So. 659 (1913). Appellant recognizes the rule but urges that he brought himself within exceptions thereto by a deposition of the tenant taken subsequent to entry of the summary final judgment. The summary final judgment was entered on June 8th, 1966. Motion for rehearing was made on June 17 and was denied after hearing on July 15th. The deposition upon which appellant relies was filed on July 20.
The summary judgment, Rule 1.510, Florida Rules of Civil Procedure, 30 F.S.A. (formerly 1.36, 1965 Revision) provides that the motion shall be determined upon "* * * the pleadings, depositions, answers to interrogatories and admissions on file together with affidavits, if any * *."
We therefore determine that the appellant has failed to show a genuine issue of material fact, and the summary judgment is affirmed.
Affirmed.