Giannelis v. Borgwarner Morse Tec Inc.

• Decision Date: 13 December 2018
• Docket Number: 526142
• Parties: Emmanuel P. GIANNELIS, Individually and as Executor of the Estate of Harriet Giannelis, Deceased, Respondent, v. BORGWARNER MORSE TEC INC., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1185
89 N.Y.S.3d 475

Emmanuel P. GIANNELIS, Individually and as Executor of the Estate of Harriet Giannelis, Deceased, Respondent,
v.
BORGWARNER MORSE TEC INC., Appellant, et al., Defendants.

526142

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

Calendar Date: October 10, 2018
Decided and Entered: December 13, 2018

89 N.Y.S.3d 476

Bond, Schoeneck & King, PLLC, Syracuse (Daniel J. Pautz of counsel), for appellant.

Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Raymond M. Schlather of counsel), for respondent.

Before: Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an order of the Supreme Court (Faughnan, J.), entered October 25, 2017 in Tompkins County, which denied a motion by defendant BorgWarner Morse TEC Inc. for summary judgment dismissing the complaint and cross claim against it.

On June 12, 2013, at around 7:20 a.m., defendant Kelly A. Elliott had just finished her shift at defendant BorgWarner Morse TEC Inc. and was driving from the plant premises via the facility's south exit when, while entering the merge lane of an abutting public road known as Warren Road, she struck and killed a bicyclist, Harriet Giannelis. Plaintiff, Giannelis' husband, subsequently commenced this action alleging that BorgWarner was negligent and

89 N.Y.S.3d 477

reckless in maintaining the exit and in managing its employees as it relates thereto. After joinder of issue, BorgWarner moved for summary judgment dismissing the complaint and a cross claim against it. Plaintiff opposed the motion and Supreme Court, finding issues of fact with respect to duty and causation, denied BorgWarner's motion. BorgWarner appeals, and we affirm.

Generally, " ‘an owner of land abutting a public sidewalk does not, solely by reason of being an abutter, owe to the public a duty to keep the [property] in a safe condition’ " ( Melamed v. Rosefsky , 291 A.D.2d 602, 603, 737 N.Y.S.2d 410 [2002], quoting Little v. City of Albany , 169 A.D.2d 1013, 1013, 565 N.Y.S.2d 291 [1991] ; accord Oles v. City of Albany , 267 A.D.2d 571, 571, 699 N.Y.S.2d 202 [1999] ). "There are, however, three exceptions to this general rule, applicable when the abutting owner (1) uses the area for a ‘special purpose,’ (2) creates the dangerous condition, or (3) violates a statute or ordinance requiring the abutter to maintain the area" ( Oles v. City of Albany , 267 A.D.2d at 571–572, 699 N.Y.S.2d 202 [internal quotation marks and citation omitted] ). Here, BorgWarner satisfied its prima facie burden demonstrating a lack of duty based upon its status as an abutting landowner and the fact that the accident occurred on a public road (see Fitzgerald v. Adirondack Tr. Lines, Inc. , 23 A.D.3d 907, 908, 804 N.Y.S.2d 126 [2005] ; Harris v. FJN Props., LLC , 18 A.D.3d 1089, 1090, 795 N.Y.S.2d 792 [2005] ). In opposition, plaintiff submitted proof that established a material question of fact as to both the special use exception and the creation of the dangerous condition exception.

A finding of a special use arises where there is a modification to the public sidewalk, such as the installation of a driveway, or a variance of the sidewalk to allow for ingress and egress (see Deans v. City of Buffalo , 181 A.D.2d 1015, 1015, 581 N.Y.S.2d 952 [2002] ; Balsam v. Delma Eng'g Corp. , 139 A.D.2d 292, 298, 532 N.Y.S.2d 105 [1988], lv dismissed and denied 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671 [1988] ), that was "constructed in a special manner for the benefit of the abutting owner or occupier" ( Appio v. City of Albany , 144 A.D.2d 869, 870, 534 N.Y.S.2d 811 [1988] ; see Reid v. Auto Tune Ctrs. , 202 A.D.2d 1047, 1047, 609 N.Y.S.2d 715 [1994] ). The owner must derive a "unique benefit unrelated to the public use" ( Moons v. Wade Lupe Constr. Co., Inc. , 43 A.D.3d 501, 502, 841 N.Y.S.2d 160 [2007] ; see Kaufman v. Silver , 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417 [1997] ), and the court will also consider whether there is an exclusive use (see Minot v. City of New York , 230 A.D.2d 719, 720, 645 N.Y.S.2d 879 [1996] ; Balsam v. Delma Eng'g Corp. , 139 A.D.2d at 298, 532 N.Y.S.2d 105 ). Contrary to BorgWarner's claims that it uses Warren Road in the same manner as the general public, there was substantial evidence in the record, submitted by plaintiff, suggesting that the public roadway in question had been altered for the exclusive benefit of BorgWarner to facilitate its...