| Morelli v Starbucks Corp. |
| 2013 NY Slip Op 04786 [107 AD3d 963] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Iris Morelli, Respondent-Appellant, v StarbucksCorporation et al., Respondents, and City of Rye, New York,Appellant-Respondent. |
—[*1] Norman M. Block, P.C., Hawthorne, N.Y., for respondent-appellant. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (GeorgeTompkins III and Patrick Lawless of counsel), for respondent Starbucks Corporation. Craig P. Curcio, Middletown, N.Y. (Deborah Bookwalter of counsel), for respondentFirst Dixon Realty, LLC.
In an action to recover damages for personal injuries, the defendant City of Rye,New York, appeals, as limited by its brief, from so much of an order of the SupremeCourt, Westchester County (Smith, J.), dated March 2, 2012, as denied that branch of itsmotion which was for summary judgment dismissing so much of the complaint as allegedthat it was negligent in failing to maintain and repair a tree well, and the plaintiffcross-appeals, as limited by her brief, from so much of the same order as granted thatbranch of the motion of the defendant City of Rye, New York, which was for summaryjudgment dismissing so much of the complaint as alleged that it was negligent inpermitting garbage to accumulate near the tree well, and granted those branches of theseparate cross motions of the defendants First Dixon Realty, LLC, and StarbucksCorporation which were for summary judgment dismissing the complaint insofar asasserted against each of them.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, withone bill of costs to the defendants First Dixon Realty, LLC, and Starbucks Corporation,payable by the plaintiff.
The plaintiff allegedly sustained injuries when she tripped and fell on defectivebrickwork in a tree well while walking on a public sidewalk in the City of Rye, NewYork. The tree well was located in front of a store owned by the defendant First DixonRealty, LLC (hereinafter First Dixon), and leased by the defendant StarbucksCorporation (hereinafter Starbucks).
"Generally, liability for injuries sustained as a result of negligent maintenance of orthe existence of dangerous or defective conditions to public sidewalks is placed on themunicipality [*2]and not the abutting landowner"(Hausser v Giunta, 88 NY2d 449, 452-453 [1996]; see Khaimova v City of NewYork, 95 AD3d 1280, 1281 [2012]). "An abutting owner or lessee will be liableto a pedestrian injured by a dangerous condition on a public sidewalk only when theowner or lessee either created the condition or caused the condition to occur because of aspecial use, or when a statute or ordinance places an obligation to maintain the sidewalkon the owner or the lessee and expressly makes the owner or the lessee liable for injuriescaused by a breach of that duty" (Hevia v Smithtown Auto Body of Long Is., Ltd., 91 AD3d822, 822-823 [2012]; seePetrillo v Town of Hempstead, 85 AD3d 996, 997 [2011]).
Here, Starbucks and First Dixon made a prima facie showing that they did not createthe alleged defect in the brickwork, did not cause it to occur because of a special use, anddid not violate a statute or ordinance which expressly imposed liability upon them forfailing to maintain the subject tree well (see Holmes v Town of Oyster Bay, 82 AD3d 1047, 1048[2011]; Grier v 35-63 Realty,Inc., 70 AD3d 772, 773 [2010]). Moreover, Starbucks, First Dixon, and the Citydemonstrated, prima facie, that the alleged accumulation of garbage on the publicsidewalk abutting the store was not a proximate cause of the plaintiff's injuries (see Bohm v Town ofBrookhaven, 43 AD3d 454, 455 [2007]; cf. Morris v Nacmias,245 AD2d 432 [1997]; Ryan v Gordon L. Hayes, Inc., 22 AD2d 985 [1964],affd 17 NY2d 765 [1966]). In opposition, the plaintiff failed to raise a triableissue of fact. Accordingly, the Supreme Court properly granted those branches of theseparate cross motions of First Dixon and Starbucks which were for summary judgmentdismissing the complaint insofar as asserted against each of them, and that branch of theCity's motion which was for summary judgment dismissing so much of the complaint asalleged that it was negligent in permitting garbage to accumulate near the tree well.
Contrary to the City's contention, the Supreme Court properly denied that branch ofits motion which was for summary judgment dismissing so much of the complaint asalleged that it was negligent in failing to maintain and repair the tree well. The City failedto make a prima facie showing that it did not have constructive notice of the allegeddefect (see Jackson v JamaicaFirst Parking, LLC, 91 AD3d 602, 603 [2012]; Bright v Village of Great NeckEstates, 54 AD3d 704, 705 [2008]). The City's contentions regarding its priorwritten notice statute are not properly before this Court (see Kuzmin v Visiting Nurse Serv.of N.Y., 56 AD3d 438, 439 [2008]; Matter of Iorio v Hyler, 49 AD3d 738, 739 [2008]; see also Albano v SuffolkCounty, 99 AD3d 741, 742 [2012]).
The parties' remaining contentions need not be reached in light of our determination.Skelos, J.P., Dickerson, Austin and Cohen, JJ., concur.