Lobel v. Rodco Petroleum Corp.

233 A.D.2d 369, 649 N.Y.S.2d 939, 1996 N.Y. App. Div. LEXIS 11618

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1996
• Status: Published

Opinions

—In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Murphy, J.), dated November 1, 1995, which, upon granting the defendants’ motion for judgment as a matter of law made at the close of the plaintiff’s case, is in favor of the defendants and against him dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff was allegedly injured when he tripped and fell on broken concrete on a curb cut along a public sidewalk, adjacent to premises operated as a service station by the defendant Sylvester Guiteau, and leased from the defendant Rodco Petroleum Corp. (hereinafter collectively the defendants). At the close of the plaintiff’s case, the court granted the defendants’ motion for judgment as a matter of law and the plaintiff appeals from the subsequent judgment dismissing the complaint.

"Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner ([see] City of Rochester v Campbell, 123 NY 405; Roark v Hunting, 24 NY2d 470 [, 475]). There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable. Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner ([see] Clifford v Dam, 81 NY 52), where the abutting owner affirmatively caused the defect ([see] Colson v Wood Realty Co., 39 AD2d 511), where the abutting landowner negligently constructed or repaired the sidewalk, and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty ([see] Willis v Parker, 225 NY 159)” (Hausser v Giunta, 88 NY2d 449, 452-453; see also, Figueroa v City of New York, 227 AD2d 373).

Here, we reject the plaintiffs contention that because the general public may have used the curb cut for ingress and egress of motor vehicles to and from the defendants’ premises that the defendants could be held liable for an alleged defect in the sidewalk under the "special use” exception. The doctrine of special use is reserved for situations where a landowner, whose property abuts a public street or sidewalk, derives a special benefit from that property unrelated to the public use (see, Poirier v City of Schenectady, 85 NY2d 310). The plaintiff failed to demonstrate that the curb cut was specially constructed for a benefit unrelated to the general public use, or that the defendants made a special use of or derived a benefit from the curb cut. Bracken, J. P., Thompson, and McGinity, JJ., concur.