Smith v. Barbaro

63 A.D.2d 804, 405 N.Y.S.2d 326, 1978 N.Y. App. Div. LEXIS 11756

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1978
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, entered April 27, 1977 in Albany County, upon a verdict rendered at a Trial Term, in favor of plaintiffs. Plaintiff sustained personal injuries when she fell on the sidewalk adjacent to premises owned by the individual defendants. A jury returned a verdict against all defendants, the city’s liability being founded upon a defective sidewalk arising from its own affirmative acts, and that of the abutting owners resting on a special benefit conferred on them by reason of the valve stem of the water service to their premises at the location where plaintiff fell. The city had excavated the area in question to provide access to the water line so that the owners could repair a leak in the system. After visiting the site and examining photographs thereof, plaintiffs’ expert witness concluded that the work performed by the city was not in accordance with the usual custom and usage of builders in the City of Albany and, consequently, that the sidewalk had settled and produced the resulting defective condition. We reject the city’s argument that there was an insufficient foundation for this testimony. The record clearly establishes the witness’ qualifications and an adequate explanation for his opinion was supplied. While an abutting owner is not liable for the maintenance of the sidewalk adjacent to his premises under ordinary conditions, we believe there is sufficient evidence in this record to support the jury’s implicit finding of a special benefit conferred upon the property of the individual defendants under the circumstances presented (see Smith v City of Corning, 14 AD2d 27, Gordon v City of Albany, 278 App Div 233). Judgment affirmed, with costs. Sweeney, J. P., Kane, Staley, Jr., Larkin and Herlihy, JJ., concur.