Lobel v. Rodco Petroleum Corp.

• Decision Date: 12 November 1996
• Citation: 649 N.Y.S.2d 939,233 A.D.2d 369
• Parties: Marc E. LOBEL, Appellant, v. RODCO PETROLEUM CORP., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 939

649 N.Y.S.2d 939

233 A.D.2d 369

Marc E. LOBEL, Appellant, v. RODCO PETROLEUM CORP., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 12, 1996.

Robert B. Steinberg, Brooklyn (Jaroslawicz & Jaros [David Jaroslawicz and Robert Tolchin], of counsel), for appellant.

McKenna, Siracusano, Fehringer & Chianese, East Rockaway (Richard E. Fehringer of counsel), for respondents.

Before BRACKEN, J.P., and THOMPSON, GOLDSTEIN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Murphy, J.), dated November 1, 1995, which, upon granting the defendants' motion for judgment as a matter of law made at the close of the plaintiff's case, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff was allegedly injured when he tripped and fell on broken concrete on a curb cut along a public sidewalk, adjacent to premises operated as a service station by the defendant Sylvester Guiteau, and leased from the defendant Rodco Petroleum Corp. (hereinafter collectively the defendants). At the close of the plaintiff's case, the court granted the defendants' motion for judgment as a matter of law and the plaintiff appeals from the subsequent judgment dismissing the complaint.

"Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner ( [see,] City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937; Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59, 248 N.E.2d 896). There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable. Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner ( [see,] Clifford v. Dam, 81 N.Y. 52), where the abutting owner affirmatively caused the defect ( [see,] Colson v. Wood Realty Co. Inc., 39 A.D.2d 511, 337 N.Y.S.2d 487), where the abutting landowner negligently constructed or repaired the sidewalk, and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty ( [see,] Willis v. Parker, 225 N.Y. 159, 121 N.E. 810)" (Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470; see also, Figueroa v. City of New York, 273 A.D.2d 373, 642 N.Y.S.2d 81 ).

Here, we reject the plaintiff's contention that because the general public may have used the curb cut for ingress and egress of motor vehicles to and from the defendants' premises that the defendants could be held liable for an alleged defect in the sidewalk under the "special use" exception. The doctrine of special use is reserved for situations where a landowner, whose property abuts a public street or sidewalk, derives a special benefit from that property unrelated to the public use (see, Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318). The plaintiff failed to demonstrate that the curb cut was specially constructed for a benefit unrelated to the general public use, or that the defendants made a special use of or derived a benefit from the curb cut.

BRACKEN, J.P., and THOMPSON and McGINITY, JJ., concur.

GOLDSTEIN, Justice, dissents, and votes to reverse the judgment appealed from, on the law, to deny the defendants' motion, and to grant the plaintiff a new trial, with the following memorandum:

The plaintiff tripped on a portion of a sidewalk where there was an apron curb cut allowing cars to transverse the sidewalk into the gasoline station operated by the defendant Sylvester Guiteau, on land owned by the codefendant Rodco Petroleum Corp. Mr. Guiteau acknowledged that, for the eight years he operated the gasoline station, cars would drive over that area to patronize his gasoline station. The trial court found that the doctrine of special use only applied if the defendant "created it or got it constructed for his own personal use and benefit". The court further found that there was no evidence that the defendants' use of the curb cut created the defect.

As the Court of Appeals noted in Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318, the special use exception can apply "where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use, and is therefore required...