| O'Toole v City of Yonkers |
| 2013 NY Slip Op 04585 [107 AD3d 866] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Marianna T. O'Toole, Respondent, v City ofYonkers et al., Defendants, Getty Square Realty, LLC, Defendant/Third-PartyPlaintiff-Respondent, and North Broadway Phones, Inc., Defendant/Third-PartyDefendant-Appellant, et al., Defendant/Third-PartyDefendant. |
—[*1] Scott Baron & Associates, P.C., Howard Beach, N.Y. (W. Bradford Bernadt ofcounsel), for plaintiff-respondent. Thomas M. Bona, P.C., White Plains, N.Y. (Kimberly C. Sheehan and Michael Flakeof counsel), for defendant/third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant/third-partydefendant North Broadway Phones, Inc., appeals (1) from so much of an order of theSupreme Court, Westchester County (Lefkowitz, J.), dated February 27, 2012, as deniedthose branches of its motion which were for summary judgment dismissing the complaintand the eighth cause of action in the third-party complaint insofar as asserted against it,and (2) from so much of an order of the same court dated April 17, 2012, as, uponreargument, adhered to the original determination.
Ordered that the appeal from the order dated February 27, 2012, is dismissed, as theportion of the order appealed from was superseded by the order dated April 17, 2012,made upon reargument; and it is further,
Ordered that the order dated April 17, 2012, is reversed insofar as appealed from, onthe law, upon reargument, the determination in the order dated February 27, 2012,denying those branches of the motion of the defendant/third-party defendant NorthBroadway Phones, Inc., which were for summary judgment dismissing the complaint andthe eighth cause of action in the third-party complaint insofar as asserted against it isvacated and, thereupon, those branches of the motion of the defendant/third-partydefendant North Broadway Phones, Inc., are granted; and it is further,
Ordered that one bill of costs is awarded to the defendant/third-party defendantNorth Broadway Phones, Inc.[*2]
Veronica Kriz fell due to an alleged defect on apublic sidewalk in Yonkers which was adjacent to premises owned by thedefendant/third-party plaintiff, Getty Square Realty, LLC (hereinafter Getty Square), andoccupied by a subtenant, the defendant third-party defendant North Broadway Phones,Inc. (hereinafter North Broadway). A pair of metal doors set into the sidewalk led to thebasement of the premises. Kriz commenced this action against, among others, GettySquare, and Getty Square commenced a third-party action against, among others, thesubtenant North Broadway, seeking, in the eighth cause of action of the third-partycomplaint, contribution and indemnification against North Broadway. In an order datedFebruary 27, 2012, the Supreme Court, inter alia, denied those branches of NorthBroadway's motion which were for summary judgment dismissing the complaint and theeighth cause of action in the third-party complaint insofar as asserted against it on theground that North Broadway's use of the metal doors raised a triable issue of fact relatingto its special use of the sidewalk. North Broadway then moved for leave to reargue. In anorder dated April 17, 2012, the court, upon reargument, adhered to its originaldetermination.
An owner or occupier of land which abuts a public sidewalk owes no duty tomaintain the sidewalk in a safe condition (see Berkowitz v Spring Cr., Inc., 56 AD3d 594, 595[2008]), and liability may not be imposed upon it for injuries sustained as a result of adangerous condition in the sidewalk, except where the abutting owner or lessee " 'eithercreated the condition, voluntarily but negligently made repairs, caused the condition tooccur because of some special use, or violated a statute or ordinance placing upon theowner or lessee the obligation to maintain the sidewalk which imposes liability upon thatparty for injuries caused by a violation of that duty' " (id. at 595-596, quotingLowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d 725, 726 [2003]).To recover from a tenant which occupies premises abutting a sidewalk under the theorythat the tenant has a special use of the sidewalk, the tenant must be in exclusivepossession and control of the alleged special-use area (see Beda v City of New York,4 AD3d 317, 318 [2004]), and the plaintiff must demonstrate that the special usecaused the defective condition which proximately caused his or her injuries (see Loiaconi v Village ofTarrytown, 36 AD3d 864, 866 [2007]; Hughes v City of New York, 304AD2d 618, 619 [2003]; Blum v City of New York, 267 AD2d 341, 342 [1999]).
North Broadway established its prima facie entitlement to judgment as a matter oflaw by showing, inter alia, that it neither created a dangerous condition nor caused suchcondition by their use of the metal doors leading to their basement (see Hughes v Cityof New York, 304 AD2d at 619; Blum v City of New York, 267 AD2d at342). In opposition, Kriz and Getty Square failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Hughes v City of NewYork, 304 AD2d at 619).
Accordingly, upon reargument, the court should have granted those branches ofNorth Broadway's motion which were for summary judgment dismissing the complaintand the eighth cause of action in the third-party complaint insofar as asserted against it.Rivera, J.P., Hall, Cohen and Miller, JJ., concur.