Summary
In Giammarino, however, there is absolutely no indication that the step from which plaintiff alighted protruded from the building onto the sidewalk.
Summary of this case from Granville v. City of New YorkOpinion
December 3, 1990
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the order and judgment is affirmed, with one bill of costs.
The plaintiff Angelina Giammarino allegedly slipped and fell on a piece of cake while leaving Angelo's Royal Pastry Shop, Inc. The cake was on the public sidewalk approximately 4 or 5 inches from the concrete step from which she had descended. The plaintiffs sued, inter alia, Emafam, Ltd., the owner of the premises, and Angelo's Royal Pastry Shop, Inc., as occupier of the premises, claiming Angelina Giammarino's injuries resulted from the alleged negligence of these defendants in permitting a dangerous condition to exist on their premises. The defendants Emafam, Ltd., and Angelo's Royal Pastry Shop, Inc., separately moved for summary judgment, claiming that, as a matter of law, an owner or occupier of land abutting a public sidewalk does not generally owe the public a duty to keep the sidewalk in a safe condition. An exception to this rule exists where the defect in the sidewalk was created by the owner or occupier or exists because of the owner or occupier's special use of a public way for its own benefit (see, Eksouzian v. Levenson, 139 A.D.2d 690). The plaintiffs responded that the step between the front entrance of the pastry shop and the sidewalk constituted a special use which benefited the pastry shop in that it provided a convenient entry to the shop, and added to its attractiveness.
The plaintiffs have failed to satisfy any of the elements needed to impose liability on the defendants Emafam, Ltd., and Angelo's Royal Pastry Shop, Inc. They failed to put forth any credible evidence that these defendants created the defective condition which allegedly caused the plaintiff Angelina Giammarino to slip and fall, since all baking was done on the premises, and the only people who took baked goods out of the store were its customers. The plaintiffs also failed to put forth any evidence indicating these defendants' special use of the public sidewalk. Their assertions that the step was designed to add to the shop's attractiveness and to provide a convenient entry into the shop are insufficient to bring the case within the special use exception.
It is well established that in order to obtain summary judgment, the movant must establish its defense or cause of action sufficiently to warrant the court, as a matter of law, to direct entry of judgment in its favor (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). The moving defendants have satisfied this burden (see, Matusewicz v. Motion Mktg., 161 A.D.2d 620). While the plaintiffs allege the existence of various issues of fact, these factual issues are irrelevant to the issue of the liability of Emafam, Ltd., and Angelo's Royal Pastry Shop, Inc. Balletta, J.P., Miller, O'Brien and Ritter, JJ., concur.