| Farrell v City of New York |
| 2009 NY Slip Op 08583 [67 AD3d 859] |
| November 17, 2009 |
| Appellate Division, Second Department |
| James Farrell et al., Respondents, v City of New York,Respondent, and IESI NY Corporation et al., Appellants, et al.,Defendants. |
—[*1] Richard M. Kenny, New York, N.Y. (Dara L. Warren of counsel), for plaintiffs-respondents. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz andDeborah A. Brenner of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants IESI NYCorporation and D.C. Properties, Inc., appeal from an order of the Supreme Court, Kings County(Miller, J.), dated August 11, 2008, which denied their motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsIESI NY Corporation and D.C. Properties, Inc., for summary judgment dismissing the complaintand all cross claims insofar as asserted against them is granted.
On February 19, 2003 the injured plaintiff tripped and fell after stepping into a hole in astreet in Brooklyn, approximately 10 to 15 feet away from a garbage transfer facility operated bythe defendant IESI NY Corporation, and owned by the defendant D.C. Properties, Inc.(hereinafter together the appellants). The injured plaintiff and his wife, suing derivatively,subsequently commenced this action against the appellants, the City of New York, and twocompanies which had allegedly performed repair or construction work in the area where theaccident occurred. The appellants moved for summary judgment dismissing the complaint andall cross claims insofar as asserted against them contending, inter alia, that they had not createdthe subject dangerous condition by performing repair work, and had no duty to maintain theportion of the public street where the accident occurred. The Supreme Court denied theappellants' motion, and we reverse.
Generally, liability for injuries sustained as a result of a dangerous condition on a publicsidewalk or street is placed on the municipality, and not on the owner or lessee of abuttingproperty (see Hausser v Giunta, 88 NY2d 449, 452-453 [1996]). However, exceptions tothis general rule exist where the landowner or lessee has either affirmatively created thedangerous condition, [*2]voluntarily but negligently maderepairs, caused the condition to occur through a special use, or violated a statute or ordinanceexpressly imposing liability on the landowner for a failure to maintain the abutting street orsidewalk (see Smirnova v City of NewYork, 64 AD3d 641 [2009];Berkowitz v Spring Cr., Inc., 56 AD3d 594, 595-596 [2008]; Roman v City of New York, 6 AD3d691 [2004]).
Here, the appellants made a prima facie showing of their entitlement to judgment as a matterof law by submitting evidentiary proof demonstrating that they performed no repair work in thestreet abutting their premises and did not make a special use of the street (see Smirnova v City of New York, 64AD3d 641 [2009]; Berkowitz v Spring Cr., Inc., 56 AD3d at 596; Bruno v City of New York, 36 AD3d640, 641 [2007]; Hyland v City ofNew York, 32 AD3d 822, 823 [2006]; Roman v City of New York, 6 AD3d 691 [2004]). Furthermore, noviolation of a statute or ordinance is alleged. In opposition to the appellants' prima facieshowing, the plaintiffs failed to raise a triable issue of fact (see Bruno v City of NewYork, 36 AD3d at 641; Hyland v City of New York, 32 AD3d at 823). Theconclusory opinion of the plaintiffs' expert that the public sidewalk in front of the appellants'premises had been removed at their behest to provide improved access for trucks entering andleaving the garbage transfer facility was speculative and unsupported by the record, and thusinsufficient to raise an issue of fact as to whether the street was reconfigured for the appellants'special benefit (see Hyland v City of New York, 32 AD3d at 823). Furthermore, evenassuming that the appellants made a special use of the street in some manner, the expert'saffidavit failed to raise an issue of fact as to whether the special use caused the subject dangerouscondition to occur (see Roman v City ofNew York, 6 AD3d 691 [2004]; Yee v Chang Xin Food Mkt., 302 AD2d 518,519 [2003]). Accordingly, the Supreme Court should have granted the appellants' motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem. Fisher, J.P., Angiolillo, Eng and Lott, JJ., concur.