Pensabene v. Incorporated Village of Valley Stream

• Citation: 609 N.Y.S.2d 75,202 A.D.2d 486
• Parties: Donna PENSABENE, et al., Plaintiffs, v. INCORPORATED VILLAGE OF VALLEY STREAM, et al., Defendants, Thomas Zultowski, et al., Defendants Third-Party Plaintiffs-Respondents; Salvatore Ferro, et al., Third-Party Defendants-Appellants.
• Decision Date: 14 March 1994
• Court: New York Supreme Court Appellate Division

Page 75

609 N.Y.S.2d 75

202 A.D.2d 486

Donna PENSABENE, et al., Plaintiffs, v. INCORPORATED VILLAGE OF VALLEY STREAM, et al., Defendants Thomas Zultowski, et al., Defendants Third-Party Plaintiffs-Respondents Salvatore Ferro, et al., Third-Party Defendants-Appellants.

Supreme Court, Appellate Division,

Second Department.

March 14, 1994.

Glenn R. Schwartz, Westbury, (Susan L. Cicio, on the brief), for third-party defendants-appellants.

William J. Cariello, Garden City, (Valerie I. Goerlich, on the brief), for defendants third-party plaintiffs-respondents.

Before MILLER, J.P., and COPERTINO, SANTUCCI and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the third-party defendants appeal from so much of an order of the Supreme Court, Nassau County (Levitt, J.), entered March 13, 1992, as denied their motion for summary judgment dismissing the third-party complaint and all cross claims against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the third-party complaint and all cross claims asserted against the appellants are dismissed.

The injured plaintiff slipped and fell on ice while walking across a portion of a driveway apron in front of a driveway owned by the defendants and third-party plaintiffs Thomas and Clara Zultowski. Another portion of the apron, upon which the injured plaintiff did not fall, serviced the abutting driveway of the third-party defendants Salvatore and Jacqueline Ferro. The plaintiffs commenced suit against, inter alia, the Zultowskis, who in turn commenced a third-party action against the Ferros. The Ferros subsequently moved for summary judgment, producing photographic and documentary evidence as well as affidavits and deposition testimony demonstrating that they did not own, possess, control, or maintain the portion of the apron where the injured plaintiff fell. They further averred that they had done nothing to cause or contribute to the icy condition. The Zultowskis opposed the motion, contending that triable issues of fact existed which precluded an award of summary judgment. The Supreme Court denied the motion. We reverse.

It is well settled that, as a general rule, an owner or occupier of abutting property owes no duty of care to others to warn them of or protect them from a defective or dangerous condition on neighboring premises (see, Gipson v. Veley, 192 A.D.2d 826, 596 N.Y.S.2d 548; Mackain v. Pratt, 182 A.D.2d 967, 582 N.Y.S.2d 556). While an exception to this rule arises where the owner of the abutting property causes or contributes to the condition (see, e.g., Herbert v. Rodriguez, 191 A.D.2d 887, 595 N.Y.S.2d 129; Brady v. Maloney, 161 A.D.2d 879, 555 N.Y.S.2d 925; Forelli v. Rugino, 139 A.D.2d 489, 526...