Melamed v. Rosefsky, 3

• Decision Date: 07 February 2002
• Docket Number: 89970,3
• Parties: MYRON MELAMED et al., Respondents, v STEVEN M. ROSEFSKY, Appellant, et al., Defendant. 89970 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

MYRON MELAMED et al., Respondents v STEVEN M. ROSEFSKY, Appellant, et al., Defendant

89970

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: December 18, 2001

Decided and Entered: February 7, 2002

Law Office of Laurie G. Ogden (Martha L. Berry of counsel), Syracuse, for appellant.

Levene, Gouldin & Thompson L.L.P. (Michael T. Baker of counsel), Binghamton, for respondents.

MEMORANDUM AND ORDER

Before: Mercure, J.P., Crew III, Spain, Carpinello and Rose, JJ.

Spain, J.

Appeal from an order of the Supreme Court (Monserrate, J.), entered July 20, 2000 in Broome County, which denied defendant Steven M. Rosefsky's motion for summary judgment dismissing the complaint against him.

Plaintiff Gladys Melamed (hereinafter plaintiff) and her husband, derivatively, commenced this action seeking injuries she sustained when she slipped and fell on a driveway apron located adjacent to property owned by defendant Steven M. Rosefsky (hereinafter defendant). At the time of the accident, defendant's property was occupied by several residential tenants and one commercial tenant, an art gallery. The driveway apron that plaintiff was traversing when she fell apparently is public property but provides access from an eight-space parking lot which defendant specifically created for use by his tenants, their patrons and guests. The six by eight-foot apron gradually slopes down from the sidewalk to the street to provide vehicles with access to the driveway and parking lot without having to drive over the curb. Following the completion of discovery, defendant moved for summary judgment, solely on the ground that he did not own the driveway apron and thus had no duty to maintain it. Supreme Court denied the motion, concluding that a question of fact exists as to whether defendant derived a special use benefit from the driveway apron, thus creating a duty on his part to keep it in a reasonably safe condition.

"The general rule is that 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 sidewalk in a safe condition * * *" (Little v City of Albany, 169 A.D.2d 1013, 1013 [citation omitted]; see, Charbonneau v City of Cohoes, 232 A.D.2d 931, 933). An exception to the general rule exists, however, where the neighboring landowner "derives a special benefit from that property unrelated to the public use" (Margulies v Frank, 228 A.D.2d 965, 966). This "special use" doctrine is reserved for those cases where the property in question has been altered in some way for the exclusive benefit of the abutting landowner (see, id.; see also, Oles v City of Albany, 267 A.D.2d 571, 572; Schwartzberg v Eisenson, 260 A.D.2d 854, 855, ...