| Berkowitz v Spring Cr., Inc. |
| 2008 NY Slip Op 09015 [56 AD3d 594] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Carole Berkowitz et al., Respondents, v Spring Creek, Inc.,et al., Appellants. (And Another Title.) |
—[*1] Rubin Fiorella & Friedman LLP, New York, N.Y. (Mary Joseph of counsel), fordefendants-appellants. Stephan Persoff, Carle Place, N.Y., for plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the defendant Spring Creek, Inc.,appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County(Davis, J.), dated February 14, 2008, as denied that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it, and the defendants DeluxeTransportation, Inc., and Willets Management Systems, Inc., separately appeal, as limited bytheir brief, from so much of the same order as denied that branch of their motion which was forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the plaintiffs to the defendant-appellant and the defendants-appellants appearingseparately and filing separate briefs, and that branch of the motion of the defendant Spring Creek,Inc., which was for summary judgment dismissing the complaint insofar as asserted against it andthat branch of the motion of the defendants Deluxe Transportation, Inc., and WilletsManagement Systems, Inc., which was for summary judgment dismissing the complaint andcross claims insofar as asserted against them are granted.
On August 5, 2005, at approximately 5:00 p.m., the injured plaintiff, who lived in Port [*2]Washington and had just returned to Port Washington on a train,went to a taxi service in a building located near the train station. The defendant Spring Creek,Inc. (hereinafter Spring Creek), owned that building. The defendants Deluxe Transportation, Inc.,and Willets Management Systems, Inc. (hereinafter Deluxe and Willets), allegedly leased thebuilding and operated the taxi service.
After requesting a taxi, and being told that one was available for her, the injured plaintiff leftthe building, and began walking on a public sidewalk in front of the building towards a taxiwaiting for her in a parking lot. As she stepped off of the sidewalk to get into the taxi, the heel ofone of her shoes became stuck in a crevice between two "Belgium blocks" running along theedge of the sidewalk. The injured plaintiff fell forward onto the pavement, allegedly sustaininginjury as a result.
The injured plaintiff and her husband, derivatively, then commenced this action. Followingthe completion of discovery, Deluxe and Willets moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them, and the defendant Spring Creekseparately moved, inter alia, for summary judgment dismissing the complaint insofar as assertedagainst it. In the order appealed from, the Supreme Court denied those motions. We reverse.
The owner or lessee of land abutting a public sidewalk owes no duty to keep the sidewalk ina safe condition (see Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d 725,726 [2003]; Lattanzi v Richmond Bagels, 291 AD2d 434 [2002]). Liability may only beimposed on the abutting owner or lessee for injuries sustained as a result of a dangerouscondition in the sidewalk where the abutting owner or lessee "either created the condition,voluntarily but negligently made repairs, caused the condition to occur because of some specialuse, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintainthe sidewalk which imposes liability upon that party for injuries caused by a violation of thatduty" (Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d at 726).
On their respective motions for summary judgment, the defendants established their primafacie entitlement to judgment as a matter of law by demonstrating that they did not create theallegedly defective condition at issue, negligently make repairs, cause the condition to occurbecause of some special use, or violate a statute or ordinance placing upon them the obligation tomaintain the sidewalk which imposed liability upon them for injuries caused by a violation ofthat duty (see Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d at 726). Inopposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs'contention, the mere fact that the taxi service's patrons used the sidewalk to get to the taxiservice's taxis was insufficient to establish that the defendants made a special use of the sidewalk(see Sampino v Crescent Assoc., LLC, 34 AD3d 779, 781-782 [2006]; Portelli vGarcia, 8 AD3d 252 [2004]; Roe v City of Poughkeepsie, 229 AD2d 568, 569[1996]; Tortora v Pearl Foods, 200 AD2d 471, 472 [1994]; Balsam v Delma Eng'gCorp., 139 AD2d 292, 298-299 [1988]). Accordingly, the Supreme Court should havegranted those branches of the defendants' respective motions which were for summary judgment.
The defendants' remaining contentions have been rendered academic in light of ourdetermination. Santucci, J.P., Covello, Leventhal and Belen, JJ., concur. [See 2008 NYSlip Op 30483(U).]