Beagle v. City of Buffalo

• Citation: 116 N.Y.S.3d 122,178 A.D.3d 1363
• Decision Date: 20 December 2019
• Docket Number: CA 19–00309,918
• Parties: Pauline A. BEAGLE, Plaintiff–Respondent, v. CITY OF BUFFALO, Defendant–Appellant, John Gikas, Sam Gikas, Milkie's on Elmwood, Inc., Defendants–Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1363
116 N.Y.S.3d 122

Pauline A. BEAGLE, Plaintiff–Respondent,
v.
CITY OF BUFFALO, Defendant–Appellant,

John Gikas, Sam Gikas, Milkie's on Elmwood, Inc., Defendants–Respondents, et al., Defendant.

918
CA 19–00309

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

December 20, 2019

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CHRISTOPHER POOLE OF COUNSEL), FOR DEFENDANT–APPELLANT.

CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

BROWN & KELLY, LLP, BUFFALO (KEVIN D. WALSH OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

178 A.D.3d 1364

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion and reinstating the amended complaint and any cross claims against defendants John Gikas, Sam Gikas, and Milkie's on Elmwood, Inc., and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she tripped and fell on an allegedly defective sidewalk in defendant City of Buffalo (City) that abutted property owned by defendants John Gikas and Sam Gikas (Gikas defendants) and leased to defendant Milkie's on Elmwood, Inc. (Milkie's). The parties do not dispute that, at the time of the incident, two sidewalk slabs were elevated by the roots of a nearby tree owned by the City. At some time before the accident, a "cold patch" repair was performed, covering the area between the two sidewalk slabs with asphalt. Nevertheless, on the day of plaintiff's accident, the sidewalk slabs remained elevated.

Following discovery, the Gikas defendants and Milkie's (collectively, property defendants) jointly moved for summary judgment dismissing the amended complaint and all cross claims asserted against them. The City thereafter cross-moved for summary judgment dismissing the amended complaint against it. Supreme Court granted the property defendants' motion but denied the City's cross motion. The City appeals. Although plaintiff also filed a notice of appeal, her appeal was deemed dismissed when it was not timely perfected (see 22 NYCRR 1250.10 [a] ). We conclude that the court erred in granting the property defendants' motion but properly denied the City's cross motion, and we therefore modify the order accordingly.

116 N.Y.S.3d 125

With respect to the property defendants' motion, "it is well established that, as an abutting landowner [and tenant], [the property defendants are] not liable for injuries sustained as the result of a defect in the sidewalk unless the special use doctrine applies, i.e., the sidewalk was constructed in a special manner for [their] benefit, or unless [they] affirmatively created the defective condition or negligently constructed or

178 A.D.3d 1365

repaired the sidewalk or there is a local ordinance charging [them] with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from [their] failure to do so" ( Guadagno v. City of Niagara Falls, 38 A.D.3d 1310, 1311, 832 N.Y.S.2d 732 [4th Dept. 2007] ; see Clauss v. Bank of Am., N.A., 151 A.D.3d 1629, 1630, 57 N.Y.S.3d 273 [4th Dept. 2017] ; Shatzel v. 152 Buffalo St., Ltd., 129 A.D.3d 1626, 1626–1627, 13 N.Y.S.3d 715 [4th Dept. 2015] ).

Although the property defendants established as a matter of law that the special use doctrine does not apply and that they did not affirmatively create the allegedly defective condition, the Charter of the City of Buffalo...