Metcalf v. Chiprin

SHINN, P. J.

This is an appeal by plaintiff from a summary judgment entered in favor of defendants. The action is for damages for personal injuries suffered by plaintiff who was injured when struck by the mantelpiece and bricks from a fireplace in a dwelling owned by defendants. The house was then occupied by William Metcalf as the tenant of the premises and at the time of her injury plaintiff was present upon the invitation of William. It is alleged that the property was in an unsafe and defective condition, that defendants knew of the condition and negligently failed and neglected to remedy it but that they promised, covenanted and agreed with William that they would cause the repair of the fireplace and its restoration to good condition, which they failed to do; plaintiff was unaware of the condition. The motion of defendants for summary judgment was upon the ground that there was no issuable question of fact and it was based in part upon the affidavit of Barrie M. Karen, The affidavit stated in part that the deposition of William had been taken and that he stated therein that he had never talked with Mrs. Chiprin; he did all his business with Mr. Chiprin; he had talked to Mr. Chiprin about the fireplace on two or three occasions; he showed Chiprin where the fireplace was coming loose from the wall; he did say to Chiprin that the fireplace was loose from the wall and was leaning forward about 2 inches. He told Chiprin “You need to put a brace on this. . . . What he said I couldn’t tell you, whether he said he was going to fix it or what he said. ’ ’ He (Metcalf) did not ask Chiprin to fix it; he told Chiprin that if he put a brace on it it would not fall but he did not remember what Chiprin replied. He mentioned it to Chiprin in July 1960 and on a later occasion in August and when asked “You don’t remember whether he told you he was going to fix it or not? A. I don’t remember the conversation. I don’t remember what he told me. ’ ’

Metcalf filed an affidavit in opposition to the motion stating that he was the son of plaintiff, Annie Metcalf, and “that as

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a result-of Ms conversations with Aaron Chiprin which took place on the premises on South Western Avenue, Metcalf had the impression that Chiprin was going to fix the toilet, the electrical fixtures, and the fireplace; that he remained as a tenant of Chiprin because of his impression that these things, namely, the toilet, the electrical fixtures and the fireplace, were going to be fixed by CMprin. ’’