Summary
In Infante v City of New York (258 AD2d 333, 334), a gas station used a portion of a public sidewalk as an entrance to its premises and occasionally for parking, we held that "[t]he use of the public sidewalk as a driveway and parking lot for the gas station... was a special use, and there was sufficient evidence to establish that such special use caused the defect in the sidewalk that caused plaintiff to fall."
Summary of this case from Petty v. DumontOpinion
February 11, 1999
Appeal from the Supreme Court, New York County (Stephen Crane, J., and a jury).
The use of the public sidewalk as a driveway and parking lot for the gas station owned by defendant Mercado, on abutting property he leased from defendant Getty Petroleum Corp., which in turn leased it from defendant Wolf, the owner, was a special use, and there was sufficient evidence to establish that such special use caused the defect in the sidewalk that caused plaintiff to fall (see, Mincey v. Mensch, 253 A.D.2d 656; Thanh Nguyen v. Brentwood School Dist., 239 A.D.2d 406, 407). While there was also sufficient evidence that Getty had knowledge of the special use and the defect, there was no evidence of such knowledge on the part of Wolf, the out-of-possession landlord, and thus the complaint as against him should have been dismissed (see, DiRende v. Cipollaro, 234 A.D.2d 78, lv denied 90 N.Y.2d 806).
Defendants' objection to the trial court's jury charge is unpreserved for appellate review (see, De Long v. County of Erie, 60 N.Y.2d 296, 306), and the complaint and cross claims against the City of New York were properly dismissed since there was no prior written notice (see, Sandler v. New York City Tr. Auth., 188 A.D.2d 335).
We have considered defendants-appellants' other contentions and find them to be unavailing.
Concur — Rosenberger, J. P., Lerner, Rubin and Mazzarelli, JJ.