Montalvo v. Western Estates, Ltd.

• Decision Date: 05 March 1998
• Parties: , 1998 N.Y. Slip Op. 2224, 1998 N.Y. Slip Op. 2225 Mary Ann MONTALVO, Plaintiff-Respondent, v. WESTERN ESTATES, LTD., et al., Defendants, and New Broad Deli & Grocery, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 562

669 N.Y.S.2d 562

240 A.D.2d 45, 1998 N.Y. Slip Op. 2224,

1998 N.Y. Slip Op. 2225

Mary Ann MONTALVO, Plaintiff-Respondent, v. WESTERN ESTATES, LTD., et al., Defendants, and New Broad Deli & Grocery, et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

March 5, 1998.

Frederick B. Simpson, of counsel (Brendan T. Fitzpatrick, on the brief, Ahmuty, Demers & McManus, attorneys), for plaintiff-respondent.

Rachael S. Charow, of counsel (Jackson & Consumano, attorneys), for defendant-appellant New Broad Deli & Grocery.

Tedd Kessler, of counsel (Roderick J. Cassidy, on the brief, Kessler & Widowski, attorneys), for defendant-appellant Norden Restaurant Corp.

Michelle S. Russo, of counsel (Chesney, Murphy & Moran and Isabella Natale, attorneys), for defendant-appellant Empire Carting Company.

Before SULLIVAN, J.P., and WILLIAMS, MAZZARELLI and ANDRIAS, JJ.

SULLIVAN, Justice Presiding.

On December 13, 1990, at approximately 1:40 p.m., plaintiff, while walking on Water Street from her Broad Street office, slipped and fell on the sidewalk just off the corner of Water and Broad Streets, in front of the Broad Street Deli & Grocery, a defendant herein, located at 105 Broad Street, and sustained a bimalleolar fracture of the right ankle. Plaintiff claims that she slipped and fell on a slick, oily substance. Although conceding that she did not know what the oily substance was and that, after the fall, she did not observe the substance that caused her to fall, she concluded that it was salad dressing or oil because, before the fall, she had observed such a substance leaking out of a dumpster located three or four feet from where she fell. Nor did plaintiff know for how long the slick substance had been on the sidewalk before her fall. The dumpster, open and, according to plaintiff, used by passersby as a garbage receptacle, was overstuffed. At the time and, as she had observed on other occasions, the area around the dumpster was "messy". She had also often observed the slick condition on the sidewalk in the year prior to the accident.

According to the Deli, the owner personally swept and picked up garbage on the sidewalk in front of the Deli at least three times a day. In fact, he had swept the sidewalk approximately 40 minutes before plaintiff's fall. The Deli stored its garbage inside the store in trash cans, which it brought outside and emptied into a private sanitation truck each day. The IAS court denied the Deli's motion for summary judgment dismissing the complaint and all cross-claims against it, from which disposition the Deli appeals.

Another defendant appealing from the denial of its cross-motion for summary judgment, Empire Carting Company, a commercial rubbish carter, serviced Fraunces Tavern, also located on Broad Street, and furnished it with two garbage dumpsters, placed on Water Street, which it emptied five times a week between the hours of 1:00 and 3:00 a.m. The allegation of fault as to Empire is that it negligently permitted the dumpsters "to become dilapidated and in disrepair", resulting in "debris deposited therein to emanate to the sidewalk." Despite some inconsistency between the parties as to the physical condition of the dumpsters, Empire had never received a complaint that they leaked. Empire did not have a contract with the Deli or its landlord to service the store premises. Fraunces Tavern, which also appeals from the denial of its cross-motion for summary judgment, is charged with the creation of the dangerous condition and also with a failure to act despite knowledge of the dangerous condition.

Generally, the municipality has the responsibility for maintenance of sidewalks so that they may be safely traveled upon by those who use them. (City of Rochester v. Campbell, 123 N.Y. 405, 411, 25 N.E. 937; see, D'Ambrosio v. City of New York, 55 N.Y.2d 454, 450 N.Y.S.2d 149, 435 N.E.2d 366.) This principle flows from the fact that it is the municipality, not the abutting owner, that has control of the sidewalks. (Rooney v. City of Long Beach, 42 A.D.2d 34, 37-38, 345 N.Y.S.2d 66, appeal dismissed 33 N.Y.2d 897, 352 N.Y.S.2d 449, 307 N.E.2d 564.) Thus, an owner or one in possession of property will not be liable to a pedestrian injured by a condition on a public sidewalk abutting the premises unless the owner or possessor created the dangerous condition (Davenport v. Apostol, 26 A.D.2d 874, 273 N.Y.S.2d 991, aff'd 22 N.Y.2d 943, 295 N.Y.S.2d 68, 242 N.E.2d 99; see, Mandel v. City of New...