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HAMMOND-WARNER v. UNITED STATES

August 20, 1992

MARCELLA HAMMOND-WARNER, Plaintiff, against UNITED STATES OF AMERICA and ALAN D. CARDINALE, Defendants.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Marcella Hammond-Warner, plaintiff in the above-referenced action, alleges that she sustained injuries after slipping and falling on a slushy substance on the sidewalk immediately in front of the main entrance to the United States Post Office located in the Jamesport Shopping Center, Route 25, Jamesport, New York. Plaintiff has brought suit against defendants Alan A. Cardinale ("Cardinale"), the owner of the shopping center, and the United States as lessor of the post office. In addition, Cardinale has brought a cross-claim against the United States, alleging that under the terms of the lease between him and the United States Postal Service (the "lease"), the Postal Service is responsible for the maintenance of the sidewalk and therefore is responsible for any injury that plaintiff may have suffered in this case. Now before the Court is the United States' motion for summary judgment against plaintiff and Cardinale, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is granted.

 Plaintiff alleges that on October 20, 1988, she slipped and fell on the sidewalk immediately outside the main entrance of the Jamesport Post Office on a tan-colored slushy liquid approximately twelve inches in diameter. The United States contends that it cannot be held liable for this alleged accident because: (1) by the terms of its lease, the Postal Service did not have-possession and control of the sidewalk outside the post office; and (2) the Postal Service had neither actual nor constructive notice of the slushy substance that allegedly caused plaintiff's fall.

 The lease between Cardinale and the Postal Service identifies the demised premises as:

 a one story masonry building and which property contains or will contain areas and spaces, improvements and appurtenances as follows: Demised premises are described . . in attached floor plan.

 The above-mentioned floor plan contains a sketch of only the post office building. It does not include sidewalks, parking areas, or any other area.

 The Maintenance Rider to the lease includes the following terms:

 (a) The term "demised premises" as used in this section includes the premises themselves, the improvements and appurtenances to such premises, all equipment and fixtures furnished or to be furnished by the lessor under this lease, and all common or joint use areas that are part of this lease.

 (b) The Postal Service shall be responsible for ordinary repairs to and maintenance of the demised premises except for those repairs that are specifically made the responsibility of the lessor in this lease. . . .

 (c) The lessor shall be responsible for:

 (1) repairs to all common or joint use areas that may be included as part of this lease agreement. . . .

 At her deposition, plaintiff testified that she cannot identify the slushy substance on which she allegedly slipped, nor does she know how it got on the sidewalk, or how long it was there prior to her fall. Moreover, there were no witnesses to the alleged accident, and ...


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