Opinion
187 SSM 30.
Decided October 21, 2004.
Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered April 30, 2004. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Oneida County (John G. Ringrose, J.), which had granted a motion of defendant City of Utica and a cross motion of defendants 200 Genesee Street, Inc. and Radisson Hotel-Utica Center, Inc. for summary judgment dismissing the complaint.
Schaal v. City of Utica, 6 AD3d 1070, affirmed.
Gustave J. DeTraglia, Jr., Utica, for appellant.
Linda Sullivan Fatata, Corporation Counsel, Utica ( Joseph P. Giruzzi of counsel), for City of Utica, respondent.
Costello, Cooney Fearon, PLLC, Syracuse ( Brendan J. Reagan of counsel), for 200 Genesee Street, Inc. and another, respondents.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
The Appellate Division correctly determined that plaintiff's speculative assertions failed to raise an issue of fact with respect to defendant City of Utica's alleged creation of a dangerous sidewalk condition. Similarly, plaintiff adduced no evidence in support of the theory that defendant hotel had a duty to maintain the public sidewalk adjoining its property because the hotel used the sidewalk for a special purpose ( see generally Poirier v. City of Schenectady, 85 NY2d 310, 315). In light of the completion of discovery in an earlier action involving the same allegations and parties and plaintiff's failure to request additional discovery in this action, summary judgment was not prematurely granted ( see Chemical Bank v. PIC Motors Corp., 58 NY2d 1023, 1026).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed, with costs, in a memorandum.