| James v Blackmon |
| 2009 NY Slip Op 00507 [58 AD3d 808] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Frank James, Respondent, v Ella Blackmon, Appellant,and Oscars Electronics and Music, Inc., Respondent. |
—[*1] Ronald Saffner, New York, N.Y., for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Ella Blackmon appealsfrom an order of the Supreme Court, Kings County (Jacobson, J.), dated September 19, 2007,which denied her motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against her.
Ordered that the order is affirmed, with costs.
On July 27, 2004, the plaintiff tripped and fell over what she alleged was a dangerouscondition in a public sidewalk in front of a commercial building owned by the defendant EllaBlackmon (hereinafter the defendant). The plaintiff subsequently commenced the instant actionto recover damages for injuries he allegedly sustained as a result of the accident.
Generally, liability for injuries sustained as a result of a dangerous condition on a publicsidewalk is placed on the municipality, and not on the owner of the abutting land (seeHausser v Giunta, 88 NY2d 449, 452-453 [1996]). However, liability may be imposed onthe abutting landowner where the landowner either affirmatively created the dangerouscondition, voluntarily but negligently made repairs to the sidewalk, created the dangerouscondition through a special use of the sidewalk, or violated a statute or ordinance expresslyimposing liability on the abutting landowner for a failure to maintain the sidewalk (see Ellman v Village of Rhinebeck, 41AD3d 635, 637 [2007]; Sverdlin v Gruber, 289 AD2d 475, 476 [2001]).[*2]
Here, the plaintiff alleged, inter alia, that the accidentoccurred as a result of the defendant's violation of a particular ordinance requiring a commerciallandowner to maintain the sidewalk abutting the land and expressly imposing liability on thelandowner for injuries caused as a result of a failure to maintain the sidewalk (seeAdministrative Code of City of NY § 7-210 [a], [b]; § 19-152 [a] [2], [6] [i]; see also Vucetovic v Epsom Downs,Inc., 10 NY3d 517, 520-521 [2008]; Cook v Consolidated Edison Co. of NY, Inc., 51 AD3d 447, 448[2008]). On her motion for summary judgment, the defendant failed to provide any evidenceshowing that she properly maintained the sidewalk as the Administrative Code of the City ofNew York requires, or that any failure to properly maintain the sidewalk was not a proximatecause of the plaintiff's injuries. Although the defendant argued that she was an out-of-possessionlandlord, under these circumstances, this did not constitute a defense (cf. Cook vConsolidated Edison Co. of NY, Inc., 51 AD3d at 448). Thus, the defendant failed todemonstrate her prima facie entitlement to judgment as a matter of law. Accordingly, theSupreme Court properly denied her motion for summary judgment (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Skelos, J.P., Dillon, Santucci andCovello, JJ., concur.