Colson v. Joseph E. Wood Realty Co., Inc.
| Decision Date | 09 November 1972 |
| Parties | Ruth COLSON et al., Appellants, v. JOSEPH E. WOOD REALTY CO., INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Robert P. Best, Gloversville, for appellants.
Borst, Smith, O'Loughlin, Smith & Abbey, Schenectady (H. Richard Lewis, Schenectady, of counsel), for respondent Joseph E. Wood Realty Co., Inc.
Charles W. Jenkins, Gloversville, for respondent Sears, Roebuck and Co.
Before GREENBLOTT, J.P., and SWEENEY, SIMONS, KANE and REYNOLDS, JJ.
This is an appeal from a judgment of the County Court, Fulton County, entered upon an order at Trial Term granting defendants' motion to dismiss the complaint at the close of the plaintiffs' evidence.
On the evening of December 14, 1964 appellant, Ruth Colson, allegedly stepped into a hole in the curb at the corner of Arlington Avenue and Fulton Street in the City of Gloversville, New York, fell and broke her right elbow. At this corner is a Sears, Roebuck store located on land owned by the respondent Joseph E. Wood Realty Co. Appellants urge here that a triable issue of fact had been presented as to the negligence of the respondents which should have gone to the jury. We cannot agree.
It is well-settled 'that the owner or occupant of land abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public a duty to keep the sidewalk in a safe condition.' (Anno., 88 A.L.R.2d 331 at 340; see also Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59, 248 N.E.2d 896; City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937.) There are recognized exceptions to this rule, for example where the sidewalk was used for a special purpose (Bogart v. Woolworth Co., 31 A.D.2d 685, 295 N.Y.S.2d 785, revd. 24 N.Y.2d 936, 301 N.Y.S.2d 995, 249 N.E.2d 772; Ryan v. Albany Housing Auth., 25 A.D.2d 792, 269 N.Y.S.2d 322; Braithwaite v. Grand Union Co., 22 A.D.2d 941, 255 N.Y.S.2d 924), where the abutting owners' or occupants' activities or actions create a dangerous condition on the sidewalk, where the abutting owners negligently construct (Daly v. Rector, etc., Trinity Church, City of New York, 188 App.Div. 280, 176 N.Y.S. 734; Anno., 88 A.L.R.2d 331 at 365) or repair the sidewalk (Malenfont v. Hyman, 5 A.D.2d 922, 171 N.Y.S.2d 915, mot. for lv. to app. den. 4 N.Y.2d 676, 174 N.Y.S.2d 1025, 150 N.E.2d 774; Neiberg v. Remsenburg Realty Corp., 1 A.D.2d 1043, 152 N.Y.S.2d 555) or where a statute, ordinance, or municipal charter expressly imposes tort liability upon the abutting owners for injuries caused by their negligent maintenance (City of Rochester v....
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