Bucalo v. City of New York

Appellate Division of the Supreme Court of New York

Bucalo v. City of New York

189 A.D.2d 656

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 14, 1993

StatusPublished

This text of 189 A.D.2d 656 (Bucalo v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bucalo v. City of New York, 189 A.D.2d 656 (N.Y. Ct. App. 1993).

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Opinion

Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered November 12, 1991, which denied defendant Trusthouse Forte Hotels’ motion, pursuant to CPLR 3211 [657]*657(a) (7) or, alternatively, CPLR 3212, to dismiss the complaint, and order of the same court, entered March 5, 1992, which granted defendant’s motion for reargument but, upon reargument, adhered to its prior determination, unanimously affirmed, with costs.

There are material issues of fact with respect to the control dr special use of the sidewalk where plaintiff slipped and fell. Even absent evidence that defendant hotel repaired the walkway or curb in question, issues of fact exist, which include whether the part of the sidewalk where the accident occurred was constructed or used exclusively to benefit the hotel, to the extent that a duty arose to maintain it in a reasonably safe condition by virtue of a special use or benefit (see, Nickelsburg v City of New York, 263 App Div 625, 626; Balsam v Delma Eng’g Corp., 139 AD2d 292, 298-299, lv denied in part and dismissed in part 73 NY2d 783). Concur—Sullivan, J. P., Milonas, Ellerin and Wallach, JJ.

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Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered November 12, 1991, which denied defendant Trusthouse Forte Hotels’ motion, pursuant to CPLR 3211 [657]*657(a) (7) or, alternatively, CPLR 3212, to dismiss the complaint, and order of the same court, entered March 5, 1992, which granted defendant’s motion for reargument but, upon reargument, adhered to its prior determination, unanimously affirmed, with costs.

There are material issues of fact with respect to the control dr special use of the sidewalk where plaintiff slipped and fell. Even absent evidence that defendant hotel repaired the walkway or curb in question, issues of fact exist, which include whether the part of the sidewalk where the accident occurred was constructed or used exclusively to benefit the hotel, to the extent that a duty arose to maintain it in a reasonably safe condition by virtue of a special use or benefit (see, Nickelsburg v City of New York, 263 App Div 625, 626; Balsam v Delma Eng’g Corp., 139 AD2d 292, 298-299, lv denied in part and dismissed in part 73 NY2d 783). Concur—Sullivan, J. P., Milonas, Ellerin and Wallach, JJ.

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189 A.D.2d 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bucalo-v-city-of-new-york-nyappdiv-1993.

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