| Keenan v Munday |
| 2010 NY Slip Op 09322 [79 AD3d 1415] |
| December 16, 2010 |
| Appellate Division, Third Department |
| Jacquelyn Keenan, Respondent, v Scott Munday et al., Defendants, andRobert Bissonette, Appellant. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (Michael T. McGarry of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Kramer, J.), entered February 18, 2010 inSchenectady County, which denied defendant Robert Bissonette's motion for summary judgmentdismissing the complaint against him.
Plaintiff commenced this action to recover for injuries allegedly sustained when she tripped and fellon a public sidewalk abutting property owned by defendant Robert Bissonette (hereinafter defendant)in the Village of Scotia, Schenectady County. Plaintiff fell in the vicinity of a blacktop-paved portion ofthe sidewalk that sloped downward to the street, forming an apron for a driveway leading to a parkinglot owned by defendant and used by defendant's tenants. At a General Municipal Law § 50-hhearing held shortly after the accident, plaintiff explained that she fell when her foot caught on anelevated portion of the concrete sidewalk where it intersected with the driveway apron and identifiedthis portion of the sidewalk on a photograph of the area. During her examination before trial, conductedapproximately 16 months later, plaintiff stated that she was unable to recall what caused her to fall.However, she subsequently executed a sworn correction sheet amending that testimony, attesting that,"[a]s I said at my first deposition [*2]back in April of 2008, and as Ipointed out then in certain photographs, as I was walking on the blacktop portion, my foot caught onthe raised corner of the concrete sidewalk." Supreme Court denied defendant's motion for summaryjudgment dismissing the complaint against him, finding that issues of fact existed as to the cause ofplaintiff's fall and defendant's special use of the property. This appeal by defendant ensued.
Defendant contends that plaintiff's submissions in opposition to the motion were insufficient to raisean issue of fact as to the cause of her fall, specifically claiming that plaintiff's correction sheet should nothave been considered because she failed to set forth the reason for the change to her depositiontestimony, as required by CPLR 3116 (a). CPLR 3116 (a) provides that a party may make changes "inform or substance" to his or her deposition testimony accompanied by "a statement of the reasons" formaking them. Even were we to conclude that plaintiff's correction to her deposition testimony did notadequately set forth the reason for the change, we nonetheless find that Supreme Court did not err inconsidering the changes. A trial court has the inherent power to permit changes or corrections to adeposition transcript, even though there was a failure to follow the proper procedure (see Prunty vKeltie's Bum Steer, 163 AD2d 595, 596 [1990]; Roberts v Ausable Chasm Co., 47AD2d 979, 980 [1975]; see also Claus v John Hancock Mut. Life Ins. Co., 254 AD2d 102,103 [1998]). Despite defendant's contention to the contrary, we cannot conclude that plaintiff'scorrection constituted a feigned attempt to raise a factual issue contrived solely in an effort to resist hismotion for summary judgment. Plaintiff's corrections, made a mere five days after the date ofdefendant's notice of motion,[FN*]are entirely consistent with her previous General Municipal Law § 50-h testimony and heridentification on a photograph during that testimony of the location of the defect which caused her fall(see Alvarez v New York City Hous. Auth., 295 AD2d 225, 226-227 [2002]; compareShivers v National Westminster Bank of N.A., 211 AD2d 630, 630-631 [1995]; Prunty vKeltie's Bum Steer, 163 AD2d at 596). Since it cannot be said on the present record that plaintiff'scorrections are patently untrue, this conflict between her original deposition testimony and thecorrections raises an issue of credibility which cannot be resolved on a motion for summary judgment(see Natale v Woodcock, 35 AD3d1128, 1129 [2006]; Boyce v Vazquez, 249 AD2d 724, 726 [1998]).
Nor do we agree with defendant's assertion that plaintiff failed to raise a question of fact as to hisspecial use of the sidewalk. Generally, "an owner of land abutting [a public sidewalk] does not, solelyby reason of being an abutter, owe to the public a duty to keep the [sidewalk] in a safe condition" (Harris v FJN Props., LLC, 18 AD3d1089, 1089 [2005] [internal quotation marks and citations omitted]; see Hausser v Giunta,88 NY2d 449, 452-453 [1996]; DiMaio vPozefsky, 35 AD3d 1136, 1136-1137 [2006]). However, where the neighboring landownerderives a special benefit from that public property which is unrelated to the public use, the landowner isrequired to maintain the property in a reasonably safe condition so as to avoid injury to others (seeKaufman v Silver, 90 NY2d 204, 207 [1997]; Harris v FJN Props., LLC, 18 AD3d at1090; Melamed v Rosefsky, 291 AD2d 602, 603 [2002]).
Here, defendant proffered evidence that plaintiff's fall occurred on a public sidewalk, therebyshifting the burden to plaintiff to establish a basis for defendant's liability as an appurtenant landowner(see Harris v FJN Props., LLC, 18 AD3d at 1090; Schwartzberg v [*3]Eisenson, 260 AD2d 854, 854-855 [1999], lv denied 93NY2d 815 [1999]). In opposition to the motion, plaintiff relied on photographs of the scene anddefendant's admissions that the portion of the sidewalk in question had been paved with blacktop priorto his purchase of the property and has since been used as a driveway by his tenants. Contrary todefendant's contention, the fact that he did not construct or maintain the driveway apron is immaterial.The duty to maintain the area of special use runs with the land so long as it is maintained for theexclusive benefit of the land (see La Porta v Thompson, 178 AD2d 735, 736 [1991]; see also Weiskopf v City of New York, 5AD3d 202, 203 [2004]; Nickelsburg v City of New York, 263 App Div 625, 626-627[1942]), and here " 'it is circumstantially evident that the [apron] was constructed not for public use, butto enable vehicles on the lower roadway to mount the raised sidewalk in order to enter defendant['s]. . . driveway' " (Melamed v Rosefsky, 291 AD2d at 603, quoting La Porta vThompson, 178 AD2d at 736). Thus, plaintiff set forth sufficient evidence to create an issue of factas to whether the driveway apron was constructed and exclusively used for the benefit of defendant'sproperty (see Harris v FJN Props., LLC, 18 AD3d at 1090; Melamed v Rosefsky,291 AD2d at 603; La Porta v Thompson, 178 AD2d at 736; compare Oles v City ofAlbany, 267 AD2d 571, 572 [1999]).
Moreover, while defendant contends that there is no evidence that the special use of the sidewalkcontributed to the defect, it is undisputed that defendant's tenants regularly drove up onto the drivewayapron to gain access to the property, and the numerous pictures submitted by plaintiff depict the apron'shighly uneven and dilapidated condition. Viewing this evidence in a light most favorable to plaintiff andaffording her the benefit of every favorable inference (see Silverberg v Palmerino, 61 AD3d 1032, 1034 [2009]), we find thatan issue of fact exists as to whether the vehicular use by defendant's tenants of the sidewalk as part of adriveway contributed to the defective condition alleged to have caused plaintiff's fall (see Rosario vCity of New York, 289 AD2d 133, 134 [2001]; see also Adorno v Carty, 23 AD3d 590, 591 [2005]). For thesereasons, Supreme Court properly denied defendant's motion for summary judgment.
Defendant's remaining contentions have been reviewed and found to be either lacking in merit orrendered academic by our determination.
Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: There is nothing in the recordindicating when the notice of motion and accompanying attorney affidavit were served on or receivedby plaintiff.