| Crawford v City of New York |
| 2012 NY Slip Op 06119 [98 AD3d 935] |
| September 12, 2012 |
| Appellate Division, Second Department |
| Ruth Crawford, Respondent, v City of New York,Defendant, Pasquale Cappella, Appellant, and Keyspan Energy Corporation,Respondent. |
—[*1] Decker, Decker, Dito & Internicola, LLP, Staten Island, N.Y. (Frank J. Dito, Jr., of counsel),for plaintiff-respondent. Cullen and Dykman LLP, Brooklyn, N.Y. (Elisa M. Pugliese of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendant Pasquale Cappellaappeals from an order of the Supreme Court, Richmond County (Aliotta, J.), dated March 7,2011, which denied his motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantPasquale Cappella for summary judgment dismissing the complaint and all cross claims insofaras asserted against him is granted.
On August 28, 2007, the plaintiff allegedly tripped and fell over a defect while walking onthe sidewalk abutting premises located in Staten Island which were owned by the defendantPasquale Cappella. In the vicinity of the location where the plaintiff allegedly fell was a "curbvalve" located at the edge of Cappella's front lawn. The curb valve was owned by National Grid,the owner of the defendant Keyspan Energy Corporation (hereinafter Keyspan). It allowedKeyspan to shut off or turn on the gas line to Cappella's premises.
The plaintiff commenced this action to recover damages for personal injuries againstCappella, Keyspan, and the City of New York. According to her bill of particulars, she wascaused to fall due to "an improperly installed, raised, uneven, broken and/or improperly repairedutility valve and otherwise defective pavement in the . . . sidewalk." She furtherdescribed the "dangerous and defective condition" which allegedly caused her accident as "animproperly installed utility valve that is raised and protrudes from the front lawn of [Cappella's]property onto the sidewalk, creating an extremely dangerous and hazardous trap for personslawfully traversing over said area."[*2]
Cappella moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against him. In support of his motion, hecontended, inter alia, that he did not have a duty to maintain the sidewalk abutting his propertybecause he did not cause the defect and did not own, install, or repair the curb valve. TheSupreme Court denied the motion. Cappella appeals, and we reverse.
"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" (James v Blackmon, 58 AD3d 808,808 [2009]; see Smirnova v City of NewYork, 64 AD3d 641 [2009]). The exceptions to this rule are when the landowneractually created the dangerous condition, made negligent repairs thereby causing the condition,created the dangerous condition through a special use of the sidewalk, or violated a statute orordinance imposing liability on the abutting landowner for failing to maintain the sidewalk(see Smirnova v City of New York, 64 AD3d at 641-642; James v Blackmon, 58AD3d at 808). In New York City, an owner of single-family residential real property that isowner-occupied and used exclusively for residential purposes, such as the subject premises, doesnot have a statutory duty to maintain sidewalks abutting that property (see AdministrativeCode of City of NY § 7-210 [b] [i], [ii]).
Cappella established his prima facie entitlement to judgment as a matter of law bydemonstrating that none of the exceptions to the aforementioned rule applied. In support of hismotion, he submitted the plaintiff's notice of claim, verified complaint, and verified bill ofparticulars, in which she alleged that the accident occurred while she was traversing the publicsidewalk in front of Cappella's premises and, thus, not on his premises. Cappella also submitted atranscript of the plaintiff's deposition, during which she testified that she tripped over "[s]ometype of a gas cap or something that was sticking out of the grass." At her deposition, the plaintiffexplained that there was "a piece of metal" sticking out from the curb valve that "looked like itwas attached to the gas cap" and was protruding a few inches onto the sidewalk. She alsoacknowledged that she had been walking on the public sidewalk, and not on Cappella's lawn,prior to reaching the area where the accident occurred.
Cappella also submitted the transcript of the deposition of Keyspan's witness, who testifiedthat curb valves were installed by "the gas company" and owned by National Grid. According toCappella's own deposition testimony, a transcript of which was annexed as an exhibit to hismotion, the curb valve was on his front lawn when he bought the premises in 1964. He alsotestified that, with respect to the area of the sidewalk where the accident occurred, as establishedby the pictures taken by the plaintiff of the accident site which were annexed as an exhibit toCappella's motion, he did not have any work done on the sidewalk in that area. Furthermore, thecomplaint and bill of particulars did not allege that Cappella had created the subject conditionthrough a special use of the sidewalk.
In opposition, the plaintiff and Keyspan failed to raise a triable issue of fact. The plaintiff'scontentions that Cappella's landscaper may have caused the curb valve cover to break when he orshe cut the grass around it were based on mere speculation and conjecture (see Mayo v Cedar Manor Mut. Hous.Corp., 96 AD3d 913, 913 [2012]; Weinberg v City of New York, 96 AD3d 736, 736 [2012]; Fredette v Town of Southampton, 95AD3d 939, 939 [2012]).
Accordingly, the Supreme Court should have granted Cappella's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against him (seegenerally Zuckerman v City of New York, 49 NY2d 557 [1980]).
In light of our determination, we need not address Cappella's remaining contentions. Dillon,J.P., Dickerson, Hall and Austin, JJ., concur.