Minott v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ROSENBLATT
• Citation: Minott v. City of New York, 645 N.Y.S.2d 879, 230 A.D.2d 719 (N.Y. App. Div. 1996)
• Decision Date: 05 August 1996
• Parties: Sandra MINOTT, et al., Respondents, v. CITY OF NEW YORK, Defendant, Sunnydale Farms, Inc., Appellant.

Page 879

645 N.Y.S.2d 879

230 A.D.2d 719

Sandra MINOTT, et al., Respondents, v. CITY OF NEW YORK, Defendant Sunnydale Farms, Inc., Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 5, 1996.

Francis W. Turner, New York City (Robert P. Walsh, of counsel), for appellant.

Pollack & Kotler, Mineola (Ruth M. Pollack and Lynn R. Kotler, of counsel), for respondents.

Before ROSENBLATT, J.P., and SANTUCCI, JOY and HART, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendant Sunnydale Farms, Inc., appeals from an order of the Supreme Court, Kings County (Greenstein, J.), entered November 14, 1995, which denied its motion to dismiss the complaint insofar as it is asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed.

This negligence action is the result of the plaintiff Sandra Minott's slip and fall accident in a parking space on an icy section of Louisiana Avenue, Brooklyn, across the street from a store owned by Sunnydale Farms, Inc. (hereinafter Sunnydale). Sunnydale moved for summary judgment and the Supreme Court denied the motion, indicating that there was an issue of fact as to the issue of special use. We disagree and grant Sunnydale's motion.

"[L]iability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property * * * Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724, citing Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296-297, 532 N.Y.S.2d 105; see, Hausser v. Giunta, 217 A.D.2d 604, 629 N.Y.S.2d 462; Kobet v. Consolidated Edison Co. of N.Y., 176 A.D.2d 785, 575 N.Y.S.2d 114; Zucker v. 1255 Hewlett Plaza Realty Co., 172 A.D.2d 517, 568 N.Y.S.2d 335). "The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others" (Balsam v. Delma Eng'g Corp., supra, at 298, 532 N.Y.S.2d 105; see also, Granville v. City of New York, 211 A.D.2d 195, 197, 627 N.Y.S.2d 4; Curtis v. City of New York, 179 A.D.2d 432, 577 N.Y.S.2d 855). Special use cases generally involve the installation of an object in the street or on the sidewalk, such as an oil cap or a runway, for the benefit of a private landowner (see, Balsam v. Delma Eng'g Corp., supra, at 298, 532 N.Y.S.2d 105). "The common thread in each of these cases was an installation ...