[*1]
Amon v City of New York
2011 NY Slip Op 51400(U) [32 Misc 3d 1223(A)]
Decided on July 26, 2011
Supreme Court, Richmond County
Maltese, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 26, 2011
Supreme Court, Richmond County


Barbara Amon, Plaintiff,

against

The City of New York, ANGELO MESSANA and CONNIE MESSANA, Defendants.




104786/08

Joseph J. Maltese, J.

The following items were considered in the review of the following motion for summary judgment.



PapersNumbered

Notice of Motion and Affidavits Annexed1

Answering Affidavits2, 3

Replying Affidavits4

ExhibitsAttached to Papers

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

The defendants, Angelo and Connie Messana, move for an order granting summary judgment pursuant to CPLR § 3212, alleging that they are not liable for the personal injuries sustained by Barbara Amon in a trip and fall on their property. The defendants' motion is denied in its entirety.

Facts

This is an action to recover for personal injuries allegedly sustained as a result of a trip and fall on cracked pavement in front of the defendants' residence. The defendants, Angelo and Connie Messana ("Messana"), move for summary judgment dismissing the complaint asserted [*2]by the plaintiff, Barbara Amon ("Amon"). Amon tripped and fell on cracked pavement on the public sidewalk near a manhole cover in front of Messana's property located at 3998 Victory Blvd. The crack was two to four inches from the manhole cover and was raised one and a half to two inches above the adjoining manhole cover. The City of New York is governed by the Administrative Code of the City of New York § 7-210, which provides, in pertinent part, that, "[n]otwithstanding any other provision of law, the city shall not be liable for any ... personal injury ... proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition."[FN1] The claim brought against the defendant, City of New York, has been resolved by Judge Aliotta leaving a dispute between Amon and Messana.

Discussion


The defendants, Messana, are seeking summary judgment dismissing the plaintiff's complaint. A motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.[FN2]

The defendants contend that they are not liable for the plaintiff's injury because a prima facie case cannot be established. To establish a prima facie case the plaintiff must demonstrate that Messana created the condition that caused the accident or owned the premises and had actual and constructive notice of the condition.[FN3] A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it; only after the defendant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition.[FN4] The defendants also contend that insufficient evidence exists to support the plaintiff's claim.

The plaintiff contends that defendant has "special use" of the subject sidewalk as the sole means of ingress and egress to his driveway. "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 [*3]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."[FN5] In this case, Messana may have had "special use" of a driveway in which the cracked pavement around the manhole cover was located.

Conclusion


A motion for summary judgment must be denied if there are "facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). To grant summary judgment there must be an absence of any disputed fact, when viewed in the light most favorable to the party opposing the motion. Summary judgment is not granted when there is doubt over the existence of a triable issue or where the facts can be argued.

Here, there is a dispute of fact as to whether or not the cracked pavement is a part of the defendants' property and whether they are liable for the injuries sustained by the plaintiff. This is an issue for the trier of fact.

Accordingly, it is hereby:

ORDERED, that the defendants' motion for summary judgment is denied; and it is further

ORDERED, that the parties shall appear before this court on August 30, 2011 for a final settlement conference.

ENTER,

DATED: July 26, 2011_______________________________

Joseph J. Maltese

Justice of the Supreme Court

Footnotes


Footnote 1: Administrative Code § 7-210[c], Adler v City of New York, 52 AD3d 549, 549 [2d Dept 2008].

Footnote 2: CPLR § 3212[b], Segrell v City of New York, 44 AD3d 929, 929 [2d Dept 2007].

Footnote 3: Drago v DeLuccio, 79 AD3d 966, 966 [2d Dept 2010], Christopher v New York City Tr. Auth., 300 AD2d 336, 336 [2d Dept 2002].

Footnote 4: CPLR § 3212, Cox v Huntington Quadrangle No. 1 Co. 35 AD3d 523, 523 [2d Dept. 2006].

Footnote 5: Breland v Bayridge Air Rights, Inc., 65 AD3d 559, 560 [2d Dept 2009], Noia v Maselli, 45 AD3d 746, 746 [2d Dept 2007], Katz v City of New York, 18 AD3d 818, 819 [2d Dept 2005].