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— N.Y.S.2d —-, 2012 WL 5950402 (N.Y.A.D. 3 Dept.), 2012 N.Y. Slip Op. 08214
Judges and Attorneys
Supreme Court, Appellate Division, Third Department, New York.
Carla HAMELIN, Appellant,
Rick McDonald et al., Respondents.
Nov. 29, 2012.
Stafford, Piller, Murnane, Plimpton, Kelleher & Trombley, Plattsburgh (Thomas W. Plimpton of
counsel), for appellant.
O’Connor, O’Connor, Bresee & First, P.C., Albany (Margaret E. Dunham of counsel), for
*1 Appeal from an order of the Supreme Court (Demarest, J.), entered December 21, 2011 in
Franklin County, which granted a motion by defendants Rick McDonald and Community Bowling
Center of Chateaugay, Inc. for summary judgment dismissing, among other things, the
complaint against them.
One early morning in May 2008, plaintiff tripped and fell while descending the steps located at
the side entrance to the Town of Chateaugay Municipal Office Building located in the Town of
Chateaugay, Franklin County, as she was leaving a privately owned bowling alley and bar
located within that building. The portion of the building within which the bowling alley was
located was leased from defendant Town of Chateaugay by defendant Community Bowling
Center of Chateaugay, Inc. and its owner, defendant Rick McDonald. The only access to the
bowling alley is through the side entrance, where there is a set of steps leading to two doors, the
left one of which leads to the bowling alley and the right one to various Town offices, among
other things. It is undisputed that, at the time of plaintiff’s fall, the side entrance steps were in a
deteriorating and dangerous condition. Plaintiff commenced this action against defendants,
seeking damages for the injuries she allegedly sustained when she fell. Community Bowling
Center and McDonald (hereinafter collectively referred to as defendants) subsequently moved
for, among other things, summary judgment dismissing the complaint against them. Supreme
Court granted defendants’ motion and this appeal by plaintiff ensued.
We affirm. In order to meet their burden of demonstrating their entitlement to judgment
dismissing the complaint, defendants were required to demonstrate the absence of ownership,
occupancy, control or special use with regard to the side entrance steps and that they neither
created nor had authority to remedy the dangerous condition thereof, thus eliminating any duty
of care to plaintiff ( see Semzock v. State of New York, 97 AD3d 1012, 1012 [2012]; Silverberg
v. Palmerino, 61 AD3d 1032, 1034 [2009]; Kozak v. Broadway Joe’s, 296 A.D.2d 683, 684
[2002]; Vander Veer v. Henderson, 267 A.D.2d 584, 586 [1999] ). The existence of a duty is a
question of law which is properly addressed by the court ( see Darby v. Compagnie Natl. Air
France, 96 N.Y.2d 343, 347 [2001]; Gadani v. Dormitory Auth. of State of N.Y., 64 AD3d 1098,
1102 [2009] ).
In support of their motion, defendants submitted, among other things, photographs of the
steps, a copy of the lease between McDonald and the Town and the deposition testimony of,
among others, McDonald and the Town Supervisor. That evidence demonstrated that the leased
premises were limited to the basement floor of the building and that defendants were prohibited
from making any changes to such premises without the Town’s written consent. Additionally, the
steps in question—which have undisputedly been deteriorating over a period of time—are used
by several tenants and the general public. They, therefore, constitute a common area that the
landlord is generally responsible for maintaining ( see generally Wynn v. T.R.I.P. Redevelopment
Assoc., 296 A.D.2d 176, 178–179 [2002] ). Indeed, the deposition testimony established that
the Town did not ask defendants to maintain or repair the steps. The evidence further
demonstrated that defendants did not create the dangerous condition of the steps or have the
authority to remedy such condition. Based upon this evidence, defendants met their initial
burden of demonstrating their entitlement to judgment as a matter of law and shifted the burden
to plaintiff to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324
[1986]; U.W. Marx, Inc. v. Koko Contr., Inc., 97 AD3d 893, 894 [2012] ).
*2 We agree with Supreme Court’s determination that, even viewing the evidence in the light
most favorable to plaintiff, she failed to meet this burden. In particular, the fact that defendants
cleared snow from the side entrance steps when necessary is not sufficient to establish their
control over the steps ( see Vander Veer v. Henderson, 267 A.D.2d at 586; Golds v. Del Aguila,
259 A.D.2d 942 [1999]; Figueroa v. Tso, 251 A.D.2d 959 [1998] ). FN1 Accordingly, Supreme
Court properly granted defendants’ motion for summary judgment dismissing the complaint.
FN1. Inasmuch as plaintiff did not argue, either in Supreme Court or in her appellate brief, that
defendants had a duty to warn their patrons of the condition of the steps, such argument is
deemed abandoned ( see Womack v. Wilhelm, 96 AD3d 1308, 1309 n1 [2012]; Kittner v.
Eastern Mut. Ins. Co., 80 AD3d 843, 845 n2 [2011], lvs dismissed 16 NY3d 890 [2011], 18 NY3d
911 [2012] ). Moreover, under the circumstances here, even if such argument had been properly
raised, we would find it to be without merit.
To the extent not specifically addressed herein, plaintiff’s remaining contentions have been
considered and found to be without merit.
PETERS, P.J., ROSE, MALONE JR. and EGAN JR., JJ., concur.
ORDERED that the order is affirmed, with costs.
N.Y.A.D. 3 Dept.,2012.
Hamelin v. Town of Chateaugay
— N.Y.S.2d —-, 2012 WL 5950402 (N.Y.A.D. 3 Dept.), 2012 N.Y. Slip Op. 08214
Democracy & Religious Freedom
Sherbert v. Verner (1963))
Sherbert, a Seventh Day Adventist, was fired because she refused to work on Saturday, her religion’s
Sabbath. Unable to find another job that did not require a willingness to work on Saturdays, she sought
unemployment compensation benefits. She was denied these benefits because the Employment Security
Commission interpreted her unwillingness to work on Saturdays as failure to accept suitable work offered to
Does the Free Exercise Clause forbid a state to deny unemployment compensation to a claimant
discharged from a job that would require her to work on her Sabbath?
Yes. The denial of unemployment compensation to a claimant fired from her job because she is unwilling to
work on her Sabbath violates her right to the free exercise of her religion.
A policy that disregards a claimant’s religious reasons for refusing employment burdens her free exercise of
her religion. She is put in the constitutionally untenable position of having to choose between receiving
unemployment benefits and following her religion. The Court said that only a compelling state interest could
justify such a burden on the free exercise of religion. Furthermore, the state must show that its compelling
interest could not be satisfied by a less restrictive alternative. Here, an exemption could have been made
for Sabbatarians without undermining the state’s interest in ensuring that benefits are paid only to claimants
who were involuntarily unemployed. (Note: strict scrutiny standard]
Wisconsin v. Yoder (1972)
Defendant Yoder was convicted of violating Wisconsin’s compulsory education law when he refused to send
his children to school after the 8th grade. He believed that the two years of compulsory high school
education conflicted with the Amish religion’s tenets that its members should learn informally to earn their
living through farming and other rural activities.
Whether the Free Exercise Clause requires states to grant the Amish an exemption from full compliance
with compulsory school attendance laws.
Yes. Denying the Amish an exemption from full compliance with compulsory school attendance laws
violates their right to the free exercise of their religion.
Applying the strict scrutiny standard established for free exercise claims in the Sherbert case, the Court
recognized that the state had a compelling interest in having a citizenry sufficiently educated to function
effectively in society and to participate intelligently in the political system. However, the Court said that an
additional two years of education would do little to advance the state’s interest in the case of the Amish, who
had a good record of preparing their children to function effectively in their self-sufficient community. A less
restrictive alternative is available here in the form of an exemption. The Court recognized that the Amish
belief and conduct is rooted in religious belief.

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