Terilli v. Peluso

114 A.D.3d 523, 980 N.Y.S.2d 443

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 21, 2013, which, insofar as appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was proper in this action where plaintiff was injured when, while walking on the sidewalk in front of defendants’ property, her foot became caught in a hole and she fell to the ground. Defendants showed that their property abutting the sidewalk where plaintiff fell was a single-family, owner-occupied residence, exempt from Administrative Code of City of NY § 7-210, and thus, they had no duty to maintain or repair the flagstone on which plaintiff fell. Nor did that portion of the sidewalk on which plaintiff fell constitute a special use to defendants, since defendants did not derive any exclusive benefit of the use of the sidewalk, unrelated to public use (see Balsam v Delma Eng’g Corp., 139 AD2d 292, 298-299 [1st Dept 1988], lv dismissed in part, denied in part 73 NY2d 783 [1988]). That defendants replaced other flagstones on the sidewalk did not give rise to a duty to repair the entire sidewalk, or the flagstone where plaintiff fell. Concur — Sweeny, J.P., Renwick, Moskowitz, Richter and Gische, JJ.