| O'Brien v Prestige Bay Plaza Dev. Corp. |
| 2013 NY Slip Op 00713 [103 AD3d 428] |
| February 5, 2013 |
| Appellate Division, First Department |
| Robert O'Brien, Respondent, v Prestige Bay PlazaDevelopment Corp. et al., Respondent, and P.C. Richard & Son, LLC, et al.,Appellants. |
—[*1] Gregory P. Haegele, PLLC, Coram (Gregory P. Haegele of counsel), for RobertO'Brien, respondent. Callan, Koster, Brady & Brennan LLP, New York (James A. Gazis of counsel), forPrestige Bay Plaza Development Corp., Bartow Properties Corp., Bartow Properties,LLC, Bay Plaza Community Corp., Bay Plaza Community Center, City Bay Plaza, LLCand City Lease Bay Plaza, LLC, respondents.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered June 27,2012, which, to the extent appealed from as limited by the briefs, denied defendants P.C.Richard & Son, LLC and A.J. Richard & Sons, Inc.'s (PC Richard) motion for summaryjudgment dismissing the complaint and cross claims against them and for an award ofreasonable attorneys' fees and costs against defendant City Bay Plaza, LLC, unanimouslymodified, on the law, the motion granted to the extent of dismissing the complaint and allcross claims against PC Richard, and otherwise affirmed, without costs. The Clerk isdirected to enter judgment accordingly.
In this action for personal injuries, plaintiff alleges that he tripped and fell over apiece of metal on the edge of a curb cut adjacent to a sidewalk in front of a shoppingplaza, where PC Richard is a tenant. As a tenant of the shopping center, not an abuttinglandowner, PC Richard has no statutory obligation to maintain the public sidewalkadjacent to its store (Administrative Code of City of NY § 7-210; see Rothstein v 400 E. 54th St.Co., 51 AD3d 431 [2008]). Further, under the terms of the 1998 lease betweenPC Richard and defendant landlord City Bay Plaza, LLC, PC Richard has no obligationto maintain the sidewalk (seeCollado v Cruz, 81 AD3d 542 [1st Dept 2011]).
Even if it were shown that PC Richard constructed the subject sidewalk afterentering into the lease, there is no evidence that the construction was negligentlyperformed, or that the defect that allegedly caused plaintiff's accident 8 to 10 years later,resulted from such construction, [*2]rather than theeffects of the passage of time (see Siegel v City of New York, 86 AD3d 452, 455 [1stDept 2011]). Nor is PC Richard liable under a special use theory, since it made no specialuse of the public sidewalk, and there is no evidence that the alleged defect was caused byits use of the sidewalk (see Balsam v Delma Eng'g Corp., 139 AD2d 292 [1stDept 1988], appeal dismissed in part, denied in part 73 NY2d 783 [1988]).
PC Richard is not, however, entitled to recover reasonable attorneys' fees and costsfrom the landlord, since the lease provision it relies upon applies when legal fees andcosts are incurred to "enforce or protect its rights under [the] lease," not in defense of apersonal injury action (see Cier Indus. Co. v Hessen, 136 AD2d 145, 148 [1stDept 1988]). Concur—Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels andGische, JJ.