Opinion
September 17, 1998
Appeal from the Supreme Court, Bronx County (Douglas McKeon, J.),
The motion court erred in applying the theory of "special use" to these circumstances and in finding an issue as to whether defendant's use of the site of plaintiff's accident for deliveries would impose liability. The owner or lessee of land abutting a public sidewalk owes no duty to the public to keep the sidewalk in a safe condition unless the landowner creates a defective condition in the sidewalk or uses it for a special purpose ( see, D'Ambrosio v. City of New York, 55 N.Y.2d 454). The occasional use of the side of the store for deliveries does not constitute a special use as that term has been construed ( Tambaro v. City of New York, 140 A.D.2d 331). "Special use cases usually involve the installation of some object in the sidewalk or street or some variance in the construction thereof" ( Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298, lv dismissed in part and denied in part 73 N.Y.2d 783; see also, Darringer v. Furtsch, 225 A.D.2d 577). Nor is there evidence that the vendor's use of the sidewalk created a hazard or caused a defect that resulted in this plaintiff's injuries ( see, Montalvo v. Western Estates, 240 A.D.2d 45).
Concur — Rosenberger, J. P., Ellerin, Nardelli, Wallach and Saxe, JJ.