Noia v. Maselli

• Decision Date: 20 November 2007
• Docket Number: 2006-10838.
• Citation: Noia v. Maselli, 45 A.D.3d 746, 846 N.Y.S.2d 326, 2007 NY Slip Op 9214 (N.Y. App. Div. 2007)
• Parties: MARY NOIA, Respondent, v. MARIA MASELLI, Appellant, and CITY OF NEW YORK et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 746

846 N.Y.S.2d 326

2007 NY Slip Op 09214

MARY NOIA, Respondent, v. MARIA MASELLI, Appellant, and CITY OF NEW YORK et al., Respondents. (And a Third-Party Action.)

2006-10838.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided November 20, 2007.

In an action to recover damages for personal injuries, the defendant Maria Maselli appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated September 13, 2006, as denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against the appellant is granted.

The plaintiff allegedly tripped and fell over a gas valve cover on a public sidewalk in front of premises owned by the appellant. The plaintiff commenced this action to recover damages for personal injuries premised on the appellant's alleged special use of the part of the sidewalk where she fell.

"Liability 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. 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...