Watters v. Arlistico, 2007 NY Slip Op 30344(U) (N.Y. Sup. Ct. 3/20/2007)

Decision Date20 March 2007
Docket NumberIndex No. 15500/05.
Citation2007 NY Slip Op 30344
PartiesROSE WATTERS and JOSEPH WATIERS, Plaintiffs, v. MARIA CARMEN ARLISTICO, ARCANGELO PASQUALE FIORE and ERMINIO ANTONIO FIORE, Defendants.
CourtNew York Supreme Court

BERNADETTE BAYNE, Judge.

Plaintiff in the instant action was a pedestrian involved in a "slip and fall" type accident while traversing a snow and ice covered sidewalk. The sidewalk in question abuts a private home located at 328 Leonard Street in Brooklyn, New York that the defendants owned and/or resided in. The sidewalk in question is adjacent to the garage in the defendants home, and the driveway to and from said garage crosses the sidewalk that the plaintiff alleges she fell upon. Defendants move for summary judgment and dismissal of the instant action, pursuant to CPLR § 3212, on the grounds that summary judgement should be granted to an abutting landowner where there is no evidence that the landowner cleared or attempted to clear snow from the abutting sidewalk, and as a result, either created or exacerbated a dangerous or hazardous condition thereon.

Plaintiff, in her opposition papers claims that defendants made a "special use" of the sidewalk by virtue of the fact that house's driveway crossed the sidewalk. Plaintiff further contends that the defendants' use of the driveway on the date of the accident caused or created the icy condition that the plaintiff fell upon. Plaintiff's bill of particulars [exhibit E of the opposition papers] states that the "dangerous condition that is alleged is an ice covered sidewalk, with a cracked surface with a hole".

Summary judgment standard

The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenburg v. Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).

CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979).

Discussion

In support of the motion, defendants submit an attorney affirmation, the deposition transcripts of the plaintiff and one of the defendants, as well as an affidavit from the defendant/homeowner. In opposition to the motion, plaintiff submits an attorney affirmation, a copy of the summons and complaint, the deposition transcripts of the plaintiff and one of the defendants, five black and white photocopies of photographs of the subject sidewalk, and a copy of what's labeled as plaintiff's "verified" bill of particulars, although there is no verification attached.

As a general rule, a landowner has no affirmative duty to keep abutting public sidewalks and streets in a safe or passable condition. Mullins v. Siegel-Cooper Co., 183 N.Y. 129, 75 N.E. 1112, 1114 (1905); City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937, 938 (1890); Granville v. Lincoln Assocs., 211 A.D.2d 195, 627 N.Y.S.2d 4 (1st Dep't 1995); Appio v. City of Albany, 144 A.D.2d 869, 534 N.Y.S.2d 811, 812 (3d Dep't 1988). Because the landowner neither owns nor controls such adjacent public ways, there is ordinarily no more reason to impose a duty on the landowner than on members of the general public. Instead, the duty to maintain public ways generally lies on the governmental entities controlling them. City of Rochester v. Campbell, supra; Shepherd v. Werwaiss, 947 F.Supp. 71 (E.D.N.Y.1996)

As to accidents occurring on or after September 14, 2003, the New York City Administrative Code places the obligation to maintain and clear sidewalks upon certain abutting landowners and imposes liability on such landowners for injuries sustained by third parties for the failure to do so (§ 7-210). The legislation specifically absolves the City of liability for injuries caused by the failure to maintain or clear sidewalks abutting privately owned real property. The liability-shifting provision of the legislation does not apply to one-, two- or three-family residential property that is at least partially owner-occupied and used exclusively for residential purposes.

Adjacent landowners, like other members of the public, do have a duty to refrain from engaging in affirmative acts of negligence which create dangerous conditions, or obstacles on public ways. [see generally, Granville v. Lincoln Assocs., supra; Yass v. Deepdale Gardens, 187 A.D.2d 506, 589 N.Y.S.2d 593, 594 (2d Dep't 1992); Appio v. City of Albany, supra; Griffen v. Griswold, 114 A.D.2d 596, 494 N.Y.S.2d 441, 443 (3d Dep't 1985); Clawson v. Central Hudson Gas & Elec. Corp., 298 N.Y. 291, 83 N.E.2d 121, 123 (1948). An owner who gratuitously undertakes to repair an abutting sidewalk may be liable for injury caused by a negligent repair job. A highly important rule of tort law is that even when no original duty is owed to the plaintiff, once a defendant undertakes to perform an act for the plaintiffs benefit, the act must be performed with due care for the safety of plaintiff. There is a duty created by voluntary assumption. The doctrine requires evidence of the defendant's voluntary affirmative undertaking that the defendant's affirmative act adversely affected the plaintiff, that is, the defendant's act placed the plaintiff in a worse position than the plaintiff would have been had the defendant failed to act at all, and lastly, that the defendant failed to act reasonably. [See generally, City of New York v. Kalikow Realty Co., 71 N.Y.2d 957, 529 N.Y.S.2d 62, 524 N.E.2d 416 (1988); Nallan v. Helmsley-Spear. Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451 (1980); Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763 (1978); Parvi v. Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960 (1977); Wolf v. City of New York, 39 N.Y.2d 568, 384 N.Y.S.2d 758, 349 N.E.2d 858 (1976); H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928); Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922); Marks v. Nambil Realty Co., 245 N.Y. 256, 258, 157 N.E. 129, 130 (1927); Gordon v. Muchnick, 180 A.D.2d 715, 579 N.Y.S.2d 745 (2d Dep't 1992); Bartels v. County of Westchester, 76 A.D.2d 517, 429 N.Y.S.2d 906 (2d Dep't 1980).]

Also, whereas a landowner is not normally liable for the negligent act of an independent contractor, such liability attaches where the dangerous nature of the work of the contractor creates a defect in the public way. See Boylhart v. Di Marco & Reimann, 270 N.Y. 217, 200 N.E. 793, 794 (1936); Herman v. City of Buffalo, 214 N.Y. 316, 108 N.E. 451, 452 (1915). Thus, the landowner is liable if the contractor's repeated traversing over an abutting sidewalk with heavy trucks damages the sidewalk. See Mullins v. Siegel-Cooper Co., supra.

Moreover, even if the landowner did not create the condition on a public way that caused an injury, the owner may be liable for the injury if the owner makes a special use of the public way. In Katz v. City of New York, 18 A.D.3d 818, 796 N.Y.S.2d 639 (2d Dep't 2005) the plaintiff-pedestrian alleged that she was injured as a result of a defect in the sidewalk abutting the defendants' property. The court ruled that genuine issues of material fact existed as to whether the defect occurred in a portion of the sidewalk that was used by defendants and their predecessors as a driveway and further held that liability for a sidewalk defect arising from a special use is not dependent upon a finding that the defect arose while the current abutting landowners owned the property. See also, Trustees of Village of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971, 972-973 (1898); Granville v. Lincoln Assocs., 211 A.D.2d 195, 627 N.Y.S.2d 4 (1st Dep't 1995); Appio v. City of Albany, 141. A.D.2d 869, 534 N.Y.S.2d 811, 812 (3d Dep't 1988). Hausser v. Giunta, 88 N.Y.2d 449, 646 N.Y.S.2d 490, 669 N.E.2d 470 (1996); MacLeod v. Pete's Tavern, 87 N.Y.2d 912, 640 N.Y.S.2d 864, 663 N.E.2d 905 (1996).

Generally, a special use exists where a property owner, or the predecessor of the owner installed an object in a sidewalk or altered the sidewalk's construction. In Charbonneau v. City of Cohoes, 232 A.D.2d 931, 648 N.Y.S.2d 836 (3d Dept.1996) the court ruled that a water line shut-off valve disk that protruded one half inch above the public sidewalk that abutted the defendant's property, did fall within "special benefit" rule; In Lucciola v. City of New York, N.Y.L.J. Jan. 5, 20065, p. 19, col. 3 (Sup. Ct., New York County 2006) the court ruled that the defendant's placement of chairs and a refrigerator to display and sell food outside of it's café raised issues of fact as to whether these furnishings constituted a special use of the sidewalk. See also Granville v. Lincoln Assocs., supra; Kate v. City of New York, supra.

The owner is responsible for injuries caused by the negligent construction or maintenance of the special use only if that installation or alteration benefits no one other than those on...

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