| Mitchell v Icolari |
| 2013 NY Slip Op 05192 [108 AD3d 600] |
| July 10, 2013 |
| Appellate Division, Second Department |
| Michael Mitchell, Respondent, v Eileen Icolari,Appellant, and City of New York, Respondent. |
—[*1] Law Offices of Michael S. Lamonsoff, PLLC, New York, N.Y. (Craig Phemister ofcounsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Eileen Icolariappeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated May8, 2012, which denied her motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against her.
Ordered that the order is reversed, on the law, with one bill of costs, and the motionof the defendant Eileen Icolari for summary judgment dismissing the complaint and allcross claims insofar as asserted against her is granted.
The plaintiff allegedly tripped and fell on a raised sidewalk flag while walking on St.Marks Place in Staten Island. The plaintiff commenced this action against Eileen Icolari,who owned the property located at 1-5 St. Marks Place, and the City of New York, torecover damages for his personal injuries allegedly caused by their negligence. In hiscomplaint and bill of particulars, the plaintiff identified the location of the alleged defectas being in front of 1-5 St. Marks Place, situated approximately 50 to 75 feet east of thenortheast corner of the intersection with Westervelt Avenue. With respect to Icolari, theplaintiff alleged that she owned, operated, and maintained the subject portion of thesidewalk.
After the completion of discovery, Icolari moved for summary judgment dismissingthe complaint and all cross claims insofar as asserted against her, asserting that the areawhere the accident occurred did not abut her property. The Supreme Court denied themotion, finding that triable issues of fact existed as to the ownership and control of theraised sidewalk flag.
The elements of a cause of action alleging negligence are the existence of a duty ofcare owed by the defendant to the plaintiff, a breach of that duty, and a showing that thebreach proximately caused the injury (see Turcotte v Fell, 68 NY2d 432, 437[1986]; Kraut v City of NewYork, 85 AD3d 979, 980 [2011]; Ruiz v Griffin, 71 AD3d 1112, 1114 [2010]; Ingrassia v Lividikos, 54AD3d 721, 724 [2008]). " '[L]iability for a dangerous condition on property isgenerally predicated upon ownership, occupancy, control or special use of the property' "(Nappi v Incorporated Vil. of Lynbrook, 19 AD3d [*2]565, 566 [2005], quoting Warren v Wilmorite, Inc.,211 AD2d 904, 905 [1995]; seeIrizarry v Heller, 95 AD3d 951, 953 [2012]; Quick v G.G.'s Pizza & Pasta, Inc., 53 AD3d 535, 536[2008]). Where none of these factors is present, "a party cannot be held liable for injuriescaused by the allegedly defective condition" (Gover v Mastic Beach Prop. Owners Assn., 57 AD3d 729,730 [2008]; see Cerrato vRapistan Demag Corp., 84 AD3d 714, 716 [2011]; Sanchez v 1710 Broadway,Inc., 79 AD3d 845, 846 [2010]; Kydd v Daarta Realty Corp., 60 AD3d 997, 998 [2009];Dugue v 1818 Newkirk Mgt. Corp., 301 AD2d 561, 562 [2003]; Aversano vCity of New York, 265 AD2d 437 [1999]).
Icolari established, prima facie, her entitlement to judgment as a matter of law bysubmitting evidence, including a survey of her property and photographs showing thatthe alleged defect was located in front of Icolari's neighbor's property, and excerpts fromthe plaintiff's deposition testimony confirming the location of the alleged defect at a pointbeyond Icolari's property line, thereby demonstrating that Icolari did not own, occupy,control, or put to a special use the sidewalk where the defect which allegedly caused theplaintiff to fall was located (see Irizarry v Heller, 95 AD3d at 953; James vStark, 183 AD2d 873, 873 [1992]). Therefore, Icolari established that she did notowe a duty to the plaintiff with respect to the subject defect (see Irizarry v Heller,95 AD3d at 953).
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to theplaintiff's contention, evidence that Icolari repaired the alleged defect located on thesidewalk abutting her neighbor's property subsequent to the happening of the accidentdid not create a question of fact as to ownership and control of the area where the allegeddefect was located.
In light of our determination, Icolari's remaining contentions need not be considered.
Accordingly, the Supreme Court improperly denied Icolari's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against her.Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.