Kaufman v. Silver

• Decision Date: 10 June 1997
• Parties: , 681 N.E.2d 417 Barbara KAUFMAN, et al., Appellants, v. Evelyn SILVER et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 250

659 N.Y.S.2d 250

90 N.Y.2d 204, 681 N.E.2d 417

Barbara KAUFMAN, et al., Appellants, v. Evelyn SILVER et al., Respondents.

Court of Appeals of New York.

June 10, 1997.

Michael Solomon, Freeport, for appellants.

White, Quinlan, Staley & Ledwith, Garden City (Michael W. Butler, of counsel), for respondents.

OPINION OF THE COURT

LEVINE, Judge.

On November 22, 1989, Barbara Kaufman allegedly sustained serious injuries after she tripped and fell on a defective asphalt handicapped-accessible ramp outside the South Bellmore Shopping Center owned by defendants in Bellmore, New York. Prior to her fall, Mrs. Kaufman, having just exited the corner store of the complex, was walking on a concrete walkway towards her car. The car was parked on the adjacent property to the west of the shopping center. The South Bellmore Shopping Center consists of eight individual stores and a parking lot. To the west of the shopping center is another parking lot owned by Pergament Home Center and approximately 75 yards further west is the Pergament Home Center itself. The concrete walkway in question extends the entire front of defendants' shopping center. Immediately adjacent to the western-most end of the walkway, on the adjoining Pergament property, is the asphalt ramp upon which Mrs. Kaufman fell. It is undisputed that the ramp is physically located upon Pergament's property.

Mrs. Kaufman and her husband commenced this negligence action to recover damages and derivative losses they allegedly sustained as a result of her fall. After discovery was concluded, defendants moved, pursuant to CPLR 3212, for summary judgment on the issue of liability, contending that since they did not own, construct, repair or maintain the ramp on the Pergament property, they owed plaintiffs no duty of care. In opposition to defendants' motion, plaintiffs did not dispute that the ramp "lies wholly outside the boundary line" of the shopping center. Rather, they invoked the doctrine of special use, arguing that because the Pergament handicapped-access ramp was apparently installed to service handicapped parking spaces on defendants' adjoining property, and is used by the shopping center's handicapped patrons, defendants have thus derived an exclusive benefit from its use and are liable for its maintenance and repair.

Supreme Court denied defendants' motion for summary judgment, finding that issues of fact exist "with respect to whether the ramp in question was developed or used exclusively to benefit [defendants'] shopping center such that there would arise a duty on their part to maintain it." The Appellate Division reversed and, without addressing the application of the special use doctrine to these facts, held that summary judgment was appropriate where defendants "demonstrated that they played no role in the creation or exacerbation of the [dangerous or defective] condition" (227 A.D.2d 383, 642 N.Y.S.2d 73). We granted plaintiffs leave to appeal, and now affirm.

On this record, we conclude that the only basis for imposing liability upon defendants is the doctrine of special use. Thus, the dispositive issue in this case is whether the special use doctrine, which heretofore has been commonly applied in cases involving a benefit to property abutting a public way, can apply here, where the special use structure or instrumentality is located on adjoining private property.

The doctrine of special use was fashioned in New York in the previous century, to authorize the imposition of liability upon an adjacent occupier of land for injuries arising out of circumstances where "permission [has been] given, by a municipal authority, to interfere with a street solely for private use and convenience in no way connected with the public use" (Clifford v. Dam, 81 N.Y. 52, 56-57). Consequently, where the abutting landowner "derives a special benefit from that [public property] unrelated to the public use," the person obtaining the benefit is "required to maintain" the used property in a reasonably safe condition to avoid injury to others (Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318 [emphasis supplied]; D'Ambrosio v. City of New York, 55 N.Y.2d 454, 462-463, 450 N.Y.S.2d 149, 435 N.E.2d 366 [the abutting landowner's obligation to maintain the sidewalk appurtenance, installed for that landowner's private advantage, runs to the public who might otherwise be harmed by his or her negligence]; see also, Trustees of Vil. of Canandaigua v. Foster, 156 N.Y. 354, 359, 50 N.E. 971). Inherent in the doctrine of special use is the principle that the duty to repair and maintain the special structure or instrumentality is imposed upon the adjoining landowner or occupier because the appurtenance was installed at their behest or for their benefit (cf., Heacock v. Sherman, 14 Wend. 58, 60 ["if a (structure) is built by an individual over a public highway for his own exclusive benefit, he is bound to repair it * * * in consideration of private...