| Dalder v Incorporated Vil. of Rockville Ctr. |
| 2014 NY Slip Op 02743 [116 AD3d 908] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Debra Dalder, Respondent, v Incorporated Villageof Rockville Centre et al., Respondents, and El Mariachi Restaurant, Inc.,Appellant. |
—[*1] Panzavecchia & Associates, PLLC, Garden City, N.Y. (Melissa A. Danowski ofcounsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant El MariachiRestaurant, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Nassau County (McCormack, J.), entered July 25, 2012, as denied its motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the appellant's motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it is granted.
According to the plaintiff, on or about October 6, 2010, she tripped and fell on asidewalk in front of a restaurant operated by the defendant El Mariachi Restaurant, Inc.(hereinafter El Mariachi), sustaining injuries. On or about December 30, 2010, theplaintiff commenced this action against, among others, El Mariachi. El Mariachi movedfor summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it. The Supreme Court denied the motion, concluding that, while El Mariachiestablished its prima facie entitlement to judgment as a matter of law, in opposition, theplaintiff raised a triable issue of fact.
"An owner or occupier of land which abuts a public sidewalk owes no duty tomaintain the sidewalk in a safe condition, and liability may not be imposed upon it forinjuries sustained as a result of a dangerous condition in the sidewalk, except where theabutting owner or lessee either created the condition, voluntarily but negligently maderepairs, caused the condition to occur because of some special use, or violated a statute orordinance placing upon the owner or lessee the obligation to maintain the sidewalkwhich imposes liability upon that party for injuries caused by a violation of that duty" (O'Toole v City of Yonkers,107 AD3d 866, 867 [2013] [internal quotation marks and citation omitted]; see Berkowitz v Spring Cr.,Inc., 56 AD3d 594, 595-596 [2008]; Lowenthal v Theodore H. HeidrichRealty Corp., 304 AD2d 725, 726 [2003]).[*2]
In support of its motion, El Mariachi establishedits prima facie entitlement to judgment as a matter of law. It is not alleged that ElMariachi made any special use of the sidewalk. El Mariachi established prima facie thatit did not voluntarily but negligently perform sidewalk repairs. Further, while section287-9 of the Code of the Village of Rockville Centre does impose a duty on, amongothers, lessees and tenants to keep contiguous sidewalks in good and safe repair, it doesnot impose tort liability upon such parties for injuries caused by a violation of that duty(see generally O'Toole v City of Yonkers, 107 AD3d at 867; Taubenfeld v Starbucks Corp.,48 AD3d 310, 311 [2008]). Moreover, El Mariachi established, prima facie, that itdid not create the defect alleged to have caused the plaintiff's injuries.
In opposition to El Mariachi's prima facie showing, the plaintiff failed to raise atriable issue of fact. Contrary to the plaintiff's contention, provisions of a lease obligatinga tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such asthe plaintiff (see Collado vCruz, 81 AD3d 542, 542 [2011]).
As to creation of the alleged defect, the plaintiff's expert concluded, among otherthings, that employees of El Mariachi created the dangerous condition by their use ofice-melting agents on the sidewalk. However, the expert's affidavit was conclusory andspeculative, as he failed to provide a basis for his conclusions regarding the cause of thealleged defect (see Martin vKone, Inc., 94 AD3d 446, 447 [2012]; Reyes v City of New York, 29 AD3d 667, 667-668 [2006];Paladino v Time Warner Cableof N.Y. City, 16 AD3d 646, 648 [2005]; Matter of Mark v Schneider,305 AD2d 685, 686 [2003]). Additionally, the expert's affidavit was based, in part, onfacts not supported by the evidence (see Fenty v Seven Meadows Farms, Inc., 108 AD3d 588,589 [2013]; Krash v Bishop-Sanzari, J.V., 309 AD2d 788, 789 [2003]).Moreover, although the expert is a licensed engineer, he did not establish that he had anyspecialized knowledge, experience, training, or education regarding sidewalk safety ormaintenance so as to qualify him to render an opinion in that area (see Y.H. v Town of Ossining,99 AD3d 760, 762 [2012]; O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 513-514[2007]; Rosen v TanningLoft, 16 AD3d 480, 481 [2005]). Thus, the plaintiff failed to raise a triable issueof fact as to whether El Mariachi created the alleged dangerous condition.
The plaintiff's remaining contentions are without merit (see generally O'Toole vCity of Yonkers, 107 AD3d at 867; Berkowitz v Spring Cr., Inc., 56 AD3dat 595-596; Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d at 726).
Accordingly, the Supreme Court should have granted El Mariachi's motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it. Dickerson, J.P., Hall, Roman and Cohen, JJ., concur.