| Noia v Maselli |
| 2007 NY Slip Op 09214 [45 AD3d 746] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Mary Noia, Respondent, v Maria Maselli, Appellant, andCity of New York et al., Respondents. (And a Third-Party Action.) |
—[*1] Peters Berger Koshel & Goldberg, P.C., Brooklyn, N.Y. (Marc A. Novick of counsel), forplaintiff-respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andSuzanne K. Colt of counsel), for defendant-respondent City of New York. Cullen and Dykman LLP, Brooklyn, N.Y. (Margaret Mazlin and Frank J. Lourenso ofcounsel), for defendants-respondents Keyspan Energy Corporation and KeyspanCorporation.
In an action to recover damages for personal injuries, the defendant Maria Maselli appeals, aslimited by her brief, from so much of an order of the Supreme Court, Kings County (Solomon,J.), dated September 13, 2006, as denied her motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against her.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents appearing separately and filing separate briefs, and the motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against theappellant is granted.
The plaintiff allegedly tripped and fell over a gas valve cover on a public sidewalk [*2]in front of premises owned by the appellant. The plaintiffcommenced this action to recover damages for personal injuries premised on the appellant'salleged special use of the part of the sidewalk where she fell.
"Liability for a dangerous or defective condition on property is generally predicated uponownership, occupancy, control or special use of the property . . . Where none ispresent, a party cannot be held liable for injuries caused by the dangerous or defective conditionof the property. The principle of special use, a narrow exception to the general rule, imposes anobligation on the abutting landowner, where he puts part of a public way to a special use for hisown benefit and the part used is subject to his control, to maintain the part so used in areasonably safe condition to avoid injury to others" (Minott v City of New York, 230AD2d 719, 720 [1996] [internal quotation marks and citations omitted]; see Kaufman vSilver, 90 NY2d 204, 207 [1997]; Balsam v Delma Eng'g Corp., 139 AD2d 292, 298[1988]).
The appellant established her prima facie entitlement to judgment as a matter of law bydemonstrating that she did not have exclusive access to or the ability to exercise control over thegas valve cover on which the plaintiff allegedly tripped and fell (see Kaufman v Silver,90 NY2d 204 [1997]; Posner v NewYork City Tr. Auth., 27 AD3d 542, 543-544 [2006]; Minott v City of New York,230 AD2d at 719). In opposition, the respondents failed to raise a triable issue of fact.Rivera, J.P., Skelos, Fisher and Angiolillo, JJ., concur.