Capretto v. City of Buffalo

• Decision Date: 02 January 2015
• Citation: 1 N.Y.S.3d 615,124 A.D.3d 1304
• Parties: Susan CAPRETTO, Plaintiff–Respondent–Appellant, v. CITY OF BUFFALO, Seneca One Realty LLC, Allpro Parking, LLC, Defendants–Respondents, Skydeck Corporation, Bison Baseball, Inc., Rich Products Corporation and Rich Entertainment Group, Defendants–Appellants–Respondents.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1304

1 N.Y.S.3d 615

Susan CAPRETTO, Plaintiff–Respondent–Appellant,

v. CITY OF BUFFALO, Seneca One Realty LLC, Allpro Parking, LLC, Defendants–Respondents,Skydeck Corporation, Bison Baseball, Inc., Rich Products Corporation and Rich Entertainment Group, Defendants–Appellants–Respondents.

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

Jan. 2, 2015.

Feldman Kieffer, LLP, Buffalo (Christopher E. Wilkins of Counsel), for Defendants–Appellants–Respondents.

Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiff–Respondent–Appellant.

Timothy A. Ball, Corporation Counsel, Buffalo (Robert E. Quinn of Counsel), for Defendant–Respondent City of Buffalo.

Walsh, Roberts & Grace, Buffalo (Robert P. Goodwin of Counsel), for Defendant–Respondent Seneca One Realty LLC.

Law Office of John Wallace, Rochester (Gary J. O'Donnell of Counsel), for Defendant–Respondent Allpro Parking, LLC.

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND VALENTINO, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she sustained when she tripped and fell as a result of broken concrete located in the driveway portion of a sidewalk. For purposes of this appeal, no one has disputed that the large area of broken concrete constituted a dangerous and "long-standing condition." The issue on this appeal is which party had a duty to correct that condition.

Defendant Seneca One Realty LLC (Seneca One) owned the property abutting the sidewalk, and contracted with defendant Allpro Parking, LLC (Allpro) to "service and operate" the parking garage located on Seneca One's property. Immediately adjacent to Seneca One's property is property owned by defendant City of Buffalo (City), which the City leased to defendant Bison Baseball, Inc. (Bison Baseball). Situated on the property leased to Bison Baseball is, inter alia, the driveway at issue on this appeal, a baseball stadium and an outdoor, surface parking lot. Bison Baseball and defendant Rich Entertainment Group contracted with defendant Skydeck Corporation (Skydeck) to manage and operate that surface parking lot. Rich Entertainment Group is an assumed name used by defendant Rich Products Corporation to conduct business in New York.

Following discovery, Seneca One moved and Allpro cross-moved for summary judgment dismissing the amended complaint and all cross claims against them. Bison Baseball, Skydeck, Rich Entertainment Group and Rich Products Corporation (collectively, Bison defendants) moved and the City cross-moved for summary judgment dismissing the amended complaint and all cross claims against them. Plaintiff opposed the motions of Seneca One and the Bison defendants, as well as the cross motion of Allpro. The Bison defendants opposed the cross motion of the City. Supreme Court granted the motion of Seneca One and the cross motions of Allpro and the City in their entirety, and granted, in part, the motion of the Bison defendants. The Bison defendants and plaintiff appeal from that order.

As a preliminary matter we note that, inasmuch as the Bison defendants did not oppose the motion of Seneca One or the cross motion of Allpro, "they do not have standing as aggrieved parties to appeal" that part of the order granting that motion and cross motion ( Whiteman v. Yeshiva & Mesivta Torah Temimah, 255 A.D.2d 378, 379, 679 N.Y.S.2d 708 ; see CPLR 5511 ; Darras v. Romans, 85 A.D.3d 710, 711, 925 N.Y.S.2d 140 ). We thus dismiss that part of the Bison defendants' appeal seeking to appeal from so much of the order as granted the motion of Seneca One and the cross motion of Allpro, and we do not address on the merits the Bison defendants' contention that the court erred in granting summary judgment to those parties.

The Bison defendants contend that the court erred in denying their motion for summary judgment with respect to the negligence claims asserted against them. We reject that contention. "Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner ... There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable. Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner ..., where the abutting owner affirmatively caused the defect ..., where the abutting landowner negligently constructed or repaired the sidewalk ... and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty" ( Hausser v. Giunta, 88 N.Y.2d 449, 452–453, 646 N.Y.S.2d 490, 669 N.E.2d 470 ; see Guadagno v. City of Niagara Falls, 38 A.D.3d 1310, 1311, 832 N.Y.S.2d 732 ; Rader v. Walton, 21 A.D.3d 1409, 1410, 802 N.Y.S.2d 818 ). Photographs in the record establish that the dangerous condition is in that portion of the sidewalk that abuts property owned by Seneca One, but it is also located in the apron of the driveway that provides access to the property leased by the Bison defendants.

"Where a sidewalk is adjacent to but not part of the area used as a driveway, the plaintiff bears the burden of proof on a motion for summary judgment of showing that the special use of the sidewalk contributed to the defect ... However, if the defect is in the portion of the sidewalk used as a driveway, the abutting landowner, on a motion for summary judgment, bears the burden of establishing that he or she did nothing to either create the defective condition or cause the condition through the special use of the property as a driveway" ( Adorno v. Carty, 23 A.D.3d 590, 591, 804 N.Y.S.2d 798 [internal quotation marks omitted]; see Campos v. Midway Cabinets, Inc., 51 A.D.3d 843, 844, 858 N.Y.S.2d 742 ; Murnan v. Town of Tonawanda, 34 A.D.3d 1296, 1296–1297, 824 N.Y.S.2d 551 ). The same principle applies to a commercial tenant of property where the driveway constitutes a special use by the tenant (see Tedeschi v. KMK Realty Corp., 8 A.D.3d 658, 659, 780 N.Y.S.2d 150 ; Pantaleon v. Lorimer Mgt. Corp., 270 A.D.2d 324, 324, 704 N.Y.S.2d 311 ; Infante v. City of New York, 258 A.D.2d 333, 334, 685 N.Y.S.2d 205 ).

While the area of the dangerous condition is in a City right-of-way that falls within the extended lot line boundaries of the property owned by Seneca One, we conclude that the Bison defendants, as lessors of the " adjacent property," may nevertheless still be liable if there is evidence that they had "access to and ability to exercise control over the special use [driveway]" ( Kaufman v. Silver, 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417 ). We conclude that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control that special use driveway (cf. id. at 208, 659 N.Y.S.2d 250, 681 N.E.2d 417 ) and, further, failed to establish as a matter of law "that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway" ( Schroeck v. Gies, 110 A.D.3d 1497, 1498, 973 N.Y.S.2d 515 ). Indeed, based on the evidence submitted by the Bison defendants in support of their motion, it is reasonable to conclude that the "driveway apron was constructed and exclusively used for the benefit of [the Bison defendants' leased] property" ( Keenan v. Munday, 79 A.D.3d 1415, 1418, 912 N.Y.S.2d 778 ; cf.

Guadagno, 38 A.D.3d at 1311, 832 N.Y.S.2d 732 ). The only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison Baseball. We thus conclude that the court properly denied their motion seeking to dismiss the negligence claims asserted against the Bison defendants insofar as those claims were based on their special use of the driveway (see e.g.

Campos, 51 A.D.3d at 844, 858 N.Y.S.2d 742 ; Adorno, 23 A.D.3d at 591, 804 N.Y.S.2d 798 ; Katz v. City of New York, 18 A.D.3d 818, 819, 796 N.Y.S.2d 639 ; cf.

Schroeck, 110 A.D.3d at 1498, 973 N.Y.S.2d 515 ).

Even assuming, arguendo, that the Bison defendants met their initial burden, we conclude that plaintiff raised triable issues of fact whether the Bison defendants created or caused the dangerous condition through their special use of the driveway portion of the sidewalk (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Contrary to the Bison defendants' contention, the affidavit from plaintiff's expert was neither conclusory nor speculative. We address that contention on the merits even though it was raised for the first time on appeal because it involves "question[s] of law appearing on the face of the record ... [that] could not have been avoided by [plaintiff] if brought to [her] attention in a timely manner" ( Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799 ; see Rew v. County of Niagara, 115 A.D.3d 1316, 1317, 983 N.Y.S.2d 170 ). In our view, the plaintiff's expert affidavit establishes that "the weight of traffic on the driveway could have been a concurrent cause of the defect, [and thus] the motion for summary judgment [was properly] denied" ( Adorno, 23 A.D.3d at 591, 804 N.Y.S.2d 798 ; see Tate v. Freeport Union Sch. Dist., 7 A.D.3d 695, 695–696, 777 N.Y.S.2d 188 ; see also Keenan, 79 A.D.3d at 1418, 912 N.Y.S.2d 778 ).

The Bison defendants contend that plaintiff improperly raised the theory of special use for the first time in opposition to their motion for summary judgment (see generally DiFabio v. Jordan, 113 A.D.3d 1109, 1110–1111, 979 N.Y.S.2d 214 ; McGrath v. Bruce Bldrs., Inc., 38 A.D.3d 1278, 1279, 831 N.Y.S.2d 817 ). We reject that contention. Plaintiff specifically alleged that the Bison defendants owned, used or possessed the real property...