Forelli v. Rugino
| Decision Date | 04 April 1988 |
| Citation | 526 N.Y.S.2d 847,139 A.D.2d 489 |
| Parties | Lucille FORELLI, et al., Respondents, v. Anthony RUGINO, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
A. Paul Goldblum, Brooklyn (Irving N. Selkin, of counsel), for appellants.
Donald A. Anderson, Massapequa, for respondents.
Before BRACKEN, J.P., and LAWRENCE, RUBIN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated June 25, 1987, which denied their motion for summary judgment.
ORDERED that the order is affirmed, without costs or disbursements.
In support of their motion for summary judgment, the defendants established that the plaintiff Lucille Forelli fell on a public sidewalk, not on the defendants' property. The plaintiffs, in opposition to the motion, relied upon an ordinance of the Village of Massapequa Park which imposed upon the defendants a duty to maintain the adjoining sidewalk, but this ordinance does not expressly impose tort liability upon the defendants for a violation of that duty. Under these circumstances, the defendants owed no duty to the plaintiff to keep the sidewalk in good repair, and cannot be subject to tort liability for any alleged breach of such a duty ( see, Rochester City v. Campbell, 123 N.Y. 405, 25 N.E. 937; Lodato v. Town of Oyster Bay, 68 A.D.2d 904, 414 N.Y.S.2d 214; Friedman v. Gearrity, 33 A.D.2d 1044, 308 N.Y.S.2d 800; Cannon v. Pfleider, 19 A.D.2d 625, 626, 241 N.Y.S.2d 85).
However, the defendants may be liable to the plaintiffs should the plaintiffs be able to prove at trial that the defendants, through their agents, actually created the defect in the sidewalk which caused the plaintiff Lucille Forelli to fall ( see, e.g., Tremblay v. Harmony Mills, 171 N.Y. 598, 602, 64 N.E. 501; Mullins v. Siegel-Cooper Co., 183 N.Y. 129, 75 N.E. 1112; Friedman v. Gearrity, supra ). In opposition to the motion for summary judgment, the plaintiffs submitted an affidavit signed by a neighboring resident who averred that, several years before the accident, the defendants employed certain persons who removed a nearby maple tree, and that the removal of the tree "actually worsened" the condition of the sidewalk. This statement, while unsubstantiated, is not wholly conclusory ( cf., Ritacco v. Town/Village of Harrison, 105 A.D.2d 834, 482 N.Y.S.2d 33) and is not incredible as a matter of law....
To continue reading
Request your trial
-
Nash v. Lerner
...143 Ill.Dec. 110, 553 N.E.2d 817 (1990), appeal denied, 133 Ill.2d 574, 149 Ill.Dec. 339, 561 N.E.2d 709 (1990); Forelli v. Rugino, 139 A.D.2d 489, 526 N.Y.S.2d 847 (1988). In Thiede, supra, after rejecting plaintiff's claim based on the "special purpose" exception, an Illinois appellate co......
-
Godino v. Kipel Assocs., Inc.
...landowner neither created the condition nor caused the defect to occur by some special use of the sidewalk. (Forelli v. Rugino, 139 A.D.2d 489, 526 N.Y.S.2d 847 (2d Dept. 1988); See also, Lodalo v. Town of Oyster Bay, 69 A.D.2d 904, 414 N.Y.S.2d 214 (2d Dept. 1979)). In the instant matter, ......
-
LaPorta v. Thompson
...evidence that they created or caused the defect (see, City of Rochester v. Campbell, 123 N.Y. 405, 414, 25 N.E. 937; Forelli v. Rugino, 139 A.D.2d 489, 526 N.Y.S.2d 847). They may be liable nonetheless if they failed "to maintain in a reasonably safe condition [the ramp] which is constructe......
-
Tambaro v. City of New York
...1 A.D.2d 1043, 152 N.Y.S.2d 555, lv. denied 2 A.D.2d 692, 153 N.Y.S.2d 591), or by a special use of the sidewalk ( Forelli v. Rugino, 139 A.D.2d 489, 526 N.Y.S.2d 847; Schwartz v. C & B Dairy Prods., 96 A.D.2d 1092, 467 N.Y.S.2d 60), the abutting owner or storekeeper may be liable for injur......