| Breland v Bayridge Air Rights, Inc. |
| 2009 NY Slip Op 06157 [65 AD3d 559] |
| August 11, 2009 |
| Appellate Division, Second Department |
| Lisa Breland, Respondent, v Bayridge Air Rights, Inc., etal., Appellants, and Consolidated Edison Company of New York, Inc., Respondent, et al.,Defendants. |
—[*1] Jacoby & Meyers, LLP, Newburgh, N.Y. (James W. Shuttleworth III of counsel), forplaintiff-respondent. Richard W. Babinecz, New York, N.Y. (Helman R. Brook of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendants Bayridge Air Rights,Inc., and Diversified Property Management Corp. appeal from an order of the Supreme Court,Kings County (Miller, J.), dated April 14, 2008, which denied their motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them.
Ordered that the order is reversed, on the law, with one bill of costs, and the appellants'motion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them is granted.
The plaintiff allegedly slipped and fell on a metal grate in front of a building owned by thedefendant Bayridge Air Rights, Inc. (hereinafter Bayridge), and managed by the defendantDiversified Property Management Corp. (hereinafter together the appellants). The grate and thetransformer vault below it were owned and maintained by the defendant Consolidated EdisonCompany of New York, Inc., and were located in the middle of the public sidewalk abutting theproperty owned by Bayridge.
"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" (Noia v Maselli, 45 AD3d 746, 746 [2007] [internal quotationmarks and citations omitted]; see Kaufman v Silver, 90 NY2d 204, 207 [1997];Minott v City of New York, 230 AD2d 719, 720 [1996]; Balsam v Delma Eng'gCorp., 139 AD2d 292, 298 [1988]).[*2]
The appellants established their prima facie entitlementto judgment as a matter of law by demonstrating that they did not have exclusive access to, orthe ability to exercise control over, the grate on which the plaintiff allegedly tripped and fell. Inopposition, the respondents failed to raise a triable issue of fact (see Kaufman v Silver,90 NY2d at 207; Noia v Maselli, 45 AD3d at 747; Alexopoulos v City of New York, 33AD3d 828 [2006]). Accordingly, the appellants' motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against them should have been granted.Florio, J.P., Miller, Covello and Balkin, JJ., concur.