Kopp v Fietta Realty Corp.

[*1] Kopp v Fietta Realty Corp. 2006 NY Slip Op 52024(U) [13 Misc 3d 1227(A)] Decided on October 24, 2006 Supreme Court, Onondaga County Greenwood, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 24, 2006
Supreme Court, Onondaga County

Chelsea M. Kopp, an Infant, by DARREN KOPP and DONELLA SOULIER, her Parents and Natural Guardians, and DARREN KOPP and DONELLA SOULIER, Individually, Plaintiffs, .

against

Fietta Realty Corp., KENYON PAGE ASSOCIATES, INC. and ANTHONY WEBBER , Defendants



2004-2828



LEE S. MICHAELS, ESQ.

For Plaintiffs

DAVID G. LINGER, ESQ.

For Defendants Fietta Realty Corp. and Kenyon Page Associates, Inc.

ANTHONY WEBBER, PRO SE

Donald A. Greenwood, J.

This is a motion for summary judgment by defendants Fietta Realty Corp. and Kenyon

Page Associates, Inc. seeking dismissal of a complaint against them for injuries to the infant

plaintiff by defendant Anthony Webber.

This action arises out of an incident that occurred in July of 2003 in the Green Acres Mobile Home Park, which was owned by defendant Fietta Realty Corporation (hereinafter Fietta). Thereafter, Fietta transferred the ownership of Green Acres to a new entity, defendant Kenyon Page Associates, Inc. (hereinafter Kenyon Page). The infant plaintiff Chelsea Kopp, then six years old, was visiting the home of her aunt who lived in the trailer park. While playing [*2]in her aunt's backyard, Chelsea was allegedly struck in the eye by a piece of glass thrown over the fence by co-defendant infant Anthony Webber.[FN1] The infant plaintiff and her parents initiated this action against defendants for negligence. Defendants Fietta and Kenyon Page now move for summary judgment dismissing the complaint as against them.

The law is well settled that in a negligence claim a plaintiff is required to show that the defendant breached a duty owed to the plaintiff. See, Estate of Morgan v. Whitestown American Legion Post No. 1113, 309 AD2d 1222 (4th Dept. 2003). A duty to control the conduct of third parties arises only when the defendant has authority to control the actions of those third persons. See, Purdy v. Public Administrator of County of Westchester, 72 NY2d 1 (1998). A landlord does not have a duty to protect a tenant from the actions of another tenant. See, Johnson v. Slocum Realty Corp., 191 AD2d 613 (2d Dept. 1993). Moreover, a landlord has no duty to protect an injured child from the acts of minor tenant; the parents and not the landlords have custody and control over minors and it is unreasonable to conclude that the power to evict give landlords a reasonable opportunity or effective means to prevent such children from injuring third parties. See, Bennett v. Ames, 77 AD2d 390 (3d Dept. 1980).

"In entering into a lease, parents do not surrender custody or control of their children to landlords and, quite obviously, landlords do not undertake to regulate the behavior of their tenants' children. The parties do not envision participation by landlords in the parent-child relationship and it would be unrealistic to conclude that the power to evict, no matter how broadly worded, furnishes landlords with a reasonable opportunity or effective means to prevent such children from injuring third parties. If parents fail to take adequate charge of their children, it can hardly be though that the threat or fact of expulsion would remedy unacceptable conduct." Id. Consequently, even if it were proven that the defendants knew of a pattern of damage inflicted by Anthony Webber on others, the Court discerns nothing in the mere tenancy arrangement chosen by his parents that would serve as a basis for imposing liability on it for his acts. See, id.

The plaintiffs also argue that defendants Fietta and Kenyon Page had a duty to evict Webber pursuant to both statute and the park rules and regulations. New York Real Property Law §233, however, does not create such a duty to evict. See, Real Property Law §233. The statute sets forth the general duties and responsibilities of the tenants and owners of manufactured home parks, including the limitations of authority of an owner to evict a tenant. See, Real Property Law §233(b)(1)-(6).[FN2] With respect to a violation of the park rules, the plaintiffs argue that Webber violated the following written rules and regulations of the park: children are prohibited from disturbing other tenants or causing damage to the park or other [*3]people's property (See, Rules and Regulations for Green Acres Mobile Home Park, paragraph 25), that conduct disturbing to other homeowners would not be tolerated (See, id. at paragraph 26) and that the park management could commence an eviction proceeding for acts against a tenant upon three confirmed complaints regarding an individual or a home (See, id. at paragraph 29). Paragraph 25 also provides that "Homeowners will be responsible for damage caused by their children...It is understood and agreed that they are the parents' responsibility..." The plaintiffs have not alleged nor does the record show that there were three specific confirmed complaints with regard to defendant Webber. As such, plaintiffs' argument with respect to the existence of a duty on the part of defendants Fietta and Kenyon Page are rejected on these grounds as well.

Likewise unpersuasive is the plaintiffs' allegation that these defendants undertook such a duty due to the establishment of a "Park Watch" program within the trailer park. There is no authority for the proposition that the mere establishment of such a program results in liability to the owners of the park. In fact, while landowners in New York owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition and a common law duty to minimize foreseeable dangers, including criminal acts of a third party, they are not the insurers of a visitor's safety. See, Maheshwari v. City of New York, 2 NY3d 288 (2004). Viewing the evidence in the light most favorable to the plaintiffs on this motion and assuming that the "Park Watch" program did exist and that the defendants through an employee provided support for its creation, such conduct does not abrogate the parental responsibility set forth in Bennett, supra.

As no duty existed on the part of defendants Fietta and Kenyon Page, their motion for summary judgment dismissing the complaint against them is granted.

NOW, therefore, for the foregoing reasons, it is hereby

ORDERED that the motion of defendants Fietta Realty Corp. and Kenyon Page Associates, Inc. for summary judgment dismissing the complaint against them is granted.

ENTER

Dated: October 24, 2006

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice

Footnotes

Footnote 1: The testimony regarding Webber's age indicates he had completed third or fourth grade the month before the incident (Transcript, pp. 21-22).

Footnote 2: Section 233(b)(5) provides a ground for eviction under particular circumstances. One is where the tenant or anyone occupying the home is in violation of any lease terms or rule or regulation established by park owner and the violation has continued for more than ten days after the owner has given written notice of such a violation. See, Real Property Law §233(b)(5). There is no evidence in the record that such a violation occurred, that it was reported or that such a violation continued as the statute requires.