| Biondi v County of Nassau |
| 2008 NY Slip Op 02092 [49 AD3d 580] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Augustino Biondi, Appellant, v County of Nassau et al.,Defendants, and Barneys Hardware, Inc., et al., Respondents. |
—[*1] Milber, Makris, Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisnotice of appeal and brief, from so much of an order of the Supreme Court, Nassau County(Jonas, J.), dated September 11, 2006, as granted that branch of the motion of the defendantsBarneys Hardware, Inc., Donald Katz, and Caroline Katz which was for summary judgmentdismissing the complaint insofar as asserted against them and denied that branch of his separatemotion which was to strike his note of issue and certificate of readiness, in effect, in order todepose the defendant Caroline Katz.
Ordered that the order is affirmed insofar as appealed from, with costs.
Generally, liability for injuries sustained as a result of dangerous and defective conditions onpublic sidewalks is placed on the municipality and not the abutting landowner (see Hausser vGiunta, 88 NY2d 449, 452-453 [1996]; Bruno v City of New York, 36 AD3d 640 [2007]). However, anabutting landowner or tenant will be liable to a pedestrian injured by a defect in a sidewalk wherethe landowner or the tenant negligently constructed or repaired the sidewalk, otherwise causedthe defective condition, caused the defect to occur by some special use of the sidewalk, orbreached a specific ordinance or statute which obligates the owner to maintain the sidewalk(see Hausser v Giunta, 88 NY2d at 452-453; Cannizzaro v Simco Mgt. Co., 26 AD3d 401, 401-402 [2006];Packer v City [*2]of New York, 282 AD2d 587 [2001]).
Here, the defendants Barneys Hardware, Inc., Donald Katz, and Caroline Katz (hereinaftercollectively the defendants) made a prima facie showing of entitlement to judgment as a matterof law by submitting evidence sufficient to demonstrate that none of the elements necessary toimpose liability upon an abutting landowner or tenant are present. In response, the plaintiff failedto submit evidence sufficient to raise a triable issue of fact (see Cannizzaro v Simco Mgt.Co., 26 AD3d at 402).
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was to strike his note of issue and certificate of readiness, in effect, inorder to depose the defendant Caroline Katz (see 22 NYCRR 202.21 [e]; Utica Mut. Ins. Co. v P.M.A. Corp., 34AD3d 793, 794 [2006]; Francis v Board of Educ. of City of Mount Vernon, 278AD2d 449 [2000]). Rivera, J.P., Ritter, Carni and Leventhal, JJ., concur.