LaPorta v. Thompson

• Decision Date: 05 December 1991
• Citation: 178 A.D.2d 735,577 N.Y.S.2d 174
• Parties: Janine La PORTA, Appellant, v. John THOMPSON, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 174

577 N.Y.S.2d 174

178 A.D.2d 735

Janine La PORTA, Appellant, v. John THOMPSON, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 5, 1991.

Finkelstein, Levine, Gittelsohn & Tetenbaum (Steven Lim, of counsel), Newburgh, for appellant.

Alan R. Lewis, Newburgh, for Rose Pendleton and another, respondents.

Bouck, Holloway, Kiernan & Casey (David J. Pollock, of counsel), Albany, for John Thompson and another, respondents.

Before CASEY, J.P., and MIKOLL, YESAWICH, LEVINE and CREW, JJ.

YESAWICH, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Benson, J.), entered June 26, 1990 in Dutchess County, which granted defendants' motions for summary judgment dismissing the amended complaint.

Plaintiff sued to recover money damages for personal injuries sustained when she slipped on a raised asphalt ramp extending from the curb of a municipal sidewalk at the end of a common driveway onto a municipal street. The driveway is located between premises owned and managed by defendants in the City of Beacon, Dutchess County. Following plaintiff's unsuccessful attempt to obtain leave to serve a late notice of claim on the City and to amend the summons and complaint to add the City as a defendant in the instant action, defendants moved for and were granted summary judgment; plaintiff appeals.

Plaintiff maintains that because the ramp was constructed for defendants' special use or benefit, they had a duty to keep it in a state of repair to avoid harm to members of the general public, and the question of whether the ramp was defective or in a state of disrepair at the time of her accident is a triable question of fact precluding summary judgment.

Defendants were not obligated by municipal statute to maintain the ramp and there is no 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 constructed in a special manner in order that [their properties] may derive a special benefit" (Hughes v. City of New York, 236 N.Y.S.2d 446, 449, affd. 25 A.D.2d 617, 268 N.Y.S.2d 985, lv. denied 18 N.Y.2d 577, 272 N.Y.S.2d 1025, 219 N.E.2d 299; see, Friedman v. Gearrity, 33 A.D.2d 1044, 1044-1045, 308 N.Y.S.2d 800; 4A Warren's Negligence, Driveways, § 1.09, at 341 [3d ed]; 65 NYJur2d, Highways, Streets, and Bridges, § 371, at 153). While it is not established in the record who installed the ramp, it is circumstantially evident that the ramp was constructed not for public use, but to enable vehicles on the lower roadway to mount the raised sidewalk in order to enter defendants' common driveway (see, Nickelsburg v. City of New York, 263 App.Div. 625, 626, 34 N.Y.S.2d 1; cf., Appio v. City of Albany, 144 A.D.2d 869, 870, 534 N.Y.S.2d 811). The fact that the ramp was built prior to defendants buying their respective properties, that it was likely to have been built by the City and that defendants' property lines adjoin the sidewalk but do not reach the street is immaterial (see, Rooney v. City of Long Beach, 42 A.D.2d 34, 36-37, 345 N.Y.S.2d 66, appeal dismissed 33 N.Y.2d 897, 352 N.Y.S.2d 449, 307 N.E.2d 564; Olivia v. Gouze, 285 App.Div. 762, 765, 140 N.Y.S.2d 438, affd 1 N.Y.2d 811, 153 N.Y.S.2d 71, 135 N.E.2d 602). Whether defendants breached their duty to maintain the ramp turns on whether the ramp was defective at the time of plaintif...