Ankin v. Spitz

• Decision Date: 24 June 2015
• Docket Number: 2013-08163
• Citation: 12 N.Y.S.3d 250,129 A.D.3d 1001,2015 N.Y. Slip Op. 05429
• Parties: James P. ANKIN, appellant, v. Mitchell SPITZ, doing business as The Orchard, et al., respondents.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1001

12 N.Y.S.3d 250

2015 N.Y. Slip Op. 05429

James P. ANKIN, appellant

v.Mitchell SPITZ, doing business as The Orchard, et al., respondents.

2013-08163

Supreme Court, Appellate Division, Second Department, New York.

June 24, 2015.

Barr, Post & Associates, PLLC, Spring Valley, N.Y. (Craig A. Post of counsel), for appellant.

Faust Goetz Schenker & Blee, New York, N.Y. (Peter Kreymer of counsel), for respondent Mitchell Spitz, doing business as The Orchard.

Peisner Gerard Girsh, LLP, New York, N.Y. (Allen H. Gueldenzopf of counsel), for respondent Daniel Spitz.

Anthony Agrippina, P.C., Flushing, N.Y. (Sherrie A. Taylor of counsel), for respondent Royal Waste Services, Inc.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 14, 2013, as granted that branch of the motion of the defendant Mitchell Spitz, doing business as The Orchard, which was for summary judgment dismissing the complaint insofar as asserted against him, and granted those branches of the respective cross motions of the defendant Daniel Spitz and the defendant Royal Waste Services, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff allegedly slipped and fell on a large, flattened cardboard box and blue plastic pouches of chemical ice in the street in front of property owned by the defendant Daniel Spitz (hereinafter Daniel) in Brooklyn. The defendant Mitchell Spitz, doing business as The Orchard (hereinafter Mitchell), operated a produce store on the property, and the defendant Royal Waste Services, Inc. (hereinafter Royal), provided waste removal services for Mitchell.

The Supreme Court properly granted those branches of Mitchell's motion and Daniel's cross motion which were for summary judgment dismissing the complaint insofar as asserted against each of them. Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality, and not on the owner or lessee of abutting property, unless the landowner or lessee has either affirmatively created the dangerous condition, voluntarily but negligently made repairs, caused the condition to occur through a special use, or violated a statute or ordinance expressly imposing liability on the landowner or lessee for a failure to maintain the abutting street (see Farrell v. City of New York, 67 A.D.3d 859, 860–861, 889 N.Y.S.2d 103 ; Smirnova v. City of New York, 64 A.D.3d 641, 642, 882 N.Y.S.2d 513 ; Hyland v. City of New York, 32 A.D.3d 822, 822–823, 821 N.Y.S.2d 138 ).

Here, Mitchell and Daniel, respectively, made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they did not create the alleged dangerous condition, perform any repair work in the street abutting the premises, or make a special use of the street, and that no statute or ordinance conferred liability upon them (see Smirnova v. City of New York, 64 A.D.3d at 642, 882 N.Y.S.2d 513 ; Hyland v. City of New York, 32 A.D.3d at 822–823, 821 N.Y.S.2d 138 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Farrell v. City of New York, 67 A.D.3d at 861, 889 N.Y.S.2d 103 ; Hyland v. City of New York, 32 A.D.3d at 823, 821 N.Y.S.2d 138 ).

Furthermore, the Supreme Court properly granted that branch of Royal's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). However, in Espinal v. Melville Snow Contrs. (id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ), the Court of Appeals recognized that exceptions to this rule apply where the contracting p...