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STICKLES v. FULLER

2 Misc.3d 954 (2004)

772 N.Y.S.2d 482

TRACY STICKLES, as Administratrix of the Estate of PETER STICKLES, Deceased, Plaintiff, v. JAMES FULLER et al., Defendants. JAMES FULLER et al., Third-Party Plaintiffs, v. FRED BARRINGER et al., Third-Party Defendants.

Supreme Court, Columbia County.

January 13, 2004.

Attorney(s) appearing for the Case

Francis Roche, for James Fuller and another, defendants and third-party plaintiffs.

Roche, Corrigan, McCoy & Bush for MacNair Hyney, defendant.

Finkelstein, Levine, Gittelsohn & Partners, LLP, for plaintiff.

Kris T. Jackstadt for Unadilla Silo Company, Inc., defendant.

Hanlon, Veloce & Wilkinson for Marietta Structures Corp., defendant.

O'Shea, McDonald & Stevens for N.Y.S. Madison Silo, Inc., defendant.

James P. O'Connor for Fred Barringer, third-party defendant.

Davis & Trotta for Donna Barringer, third-party defendant.

OPINION OF THE COURT

JOHN G. CONNOR, J.

Defendants, James Fuller and Nancy Fuller Brusie (hereinafter the owners), move for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint as to the owners on the grounds that (1) plaintiff's decedent (hereinafter Stickles) assumed the risk of being overcome by silo gas, (2) the owners are not liable since they are out-of-possession landlords, and (3) the owners had no actual or constructive...

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