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