Giammarino v. Angelo's Royal Pastry Shop, Inc.

• Decision Date: 03 December 1990
• Parties: Angelina GIAMMARINO, et al., Appellants, v. ANGELO'S ROYAL PASTRY SHOP, INC., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 547

562 N.Y.S.2d 547

168 A.D.2d 423

Angelina GIAMMARINO, et al., Appellants, v. ANGELO'S ROYAL PASTRY SHOP, INC., et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

Dec. 3, 1990.

Slater and Sgarlato, Brooklyn (Irving N. Selkin, of counsel), for appellants.

Lawlor & Caulfield, New York City (Rose M. Trifiletti, of counsel), for respondent Angelo's Royal Pastry Shop, Inc.

Burns, Kennedy, Schilling & O'Shea, New York City (Jeanne M. Lyons, of counsel), for respondent Emafam, Ltd.

Before BALLETTA, J.P., and MILLER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In consolidated actions to recover damages for personal injuries, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Kings County (Shaw, J.), dated August 21, 1989, which granted the respective motions of the defendants Emafam, Ltd. and Angelo's Royal Pastry Shop, Inc., for summary judgment dismissing the complaint insofar as it is asserted against them and any cross claims asserted against them.

ORDERED that the order and judgment is affirmed, with one bill of costs.

The plaintiff Angelina Giammarino allegedly slipped and fell on a piece of cake while leaving Angelo's Royal Pastry Shop, Inc. The cake was on the public sidewalk approximately four or five inches from the concrete step from which she had descended. The plaintiffs sued, inter alia, Emafam, Ltd., the owner of the premises, and Angelo's Royal Pastry Shop, Inc., as occupier of the premises, claiming Angelina Giammarino's injuries resulted from the alleged negligence of these defendants in permitting a dangerous condition to exist on their premises. The defendants Emafam, Ltd., and Angelo's Royal Pastry Shop, Inc., separately moved for summary judgment, claiming that, as a matter of law, an owner or occupier of land abutting a public sidewalk does not generally owe the public a duty to keep the sidewalk in a safe condition. An exception to this rule exists where the defect in the sidewalk was created by the owner or occupier or exists because of the owner or occupier's special use of a public way for its own benefit (see, Eksouzian v. Levenson, 139 A.D.2d 690, 527 N.Y.S.2d 444). The plaintiffs responded that the step between the front entrance of the pastry shop and the sidewalk constituted a special use which benefited the pastry shop in that it provided a convenient entry to the shop, and added to its attractiveness.

The plaintiffs...