Opinion
2014-04-23
Debra DALDER, plaintiff-respondent, v. INCORPORATED VILLAGE OF ROCKVILLE CENTRE, et al., defendants-respondents, El Mariachi Restaurant, Inc., appellant.
Paganini, Cioci, Pinter, Cusumano & Farole (Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. [Lisa L. Gokhulsingh], of counsel), for appellant. Panzavecchia & Associates, PLLC, Garden City, N.Y. (Melissa A. Danowski of counsel), for plaintiff-respondent.
Paganini, Cioci, Pinter, Cusumano & Farole (Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. [Lisa L. Gokhulsingh], of counsel), for appellant.Panzavecchia & Associates, PLLC, Garden City, N.Y. (Melissa A. Danowski of counsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant El Mariachi Restaurant, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCormack, J.), entered July 25, 2012, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.
According to the plaintiff, on or about October 6, 2010, she tripped and fell on a sidewalk in front of a restaurant operated by the defendant El Mariachi Restaurant, Inc. (hereinafter El Mariachi), sustaining injuries. On or about December 30, 2010, the plaintiff commenced this action against, among others, El Mariachi. El Mariachi moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court denied the motion, concluding that, while El Mariachi established its prima facie entitlement to judgment as a matter of law, in opposition, the plaintiff raised a triable issue of fact.
“An owner or occupier of land which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting owner or lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty” ( O'Toole v. City of Yonkers, 107 A.D.3d 866, 867, 967 N.Y.S.2d 751 [internal quotation marks and citation omitted]; see Berkowitz v. Spring Cr., Inc., 56 A.D.3d 594, 595–596, 868 N.Y.S.2d 682;Lowenthal v. Theodore H. Heidrich Realty Corp., 304 A.D.2d 725, 726, 759 N.Y.S.2d 497).
In support of its motion, El Mariachi established its prima facie entitlement to judgment as a matter of law. It is not alleged that El Mariachi made any special use of the sidewalk. El Mariachi established prima facie that it did not voluntarily but negligently perform sidewalk repairs. Further, while section 287–9 of the Code of the Village of Rockville Centre does impose a duty on, among others, lessees and tenants to keep contiguous sidewalks in good and safe repair, it does not impose tort liability upon such parties for injuries caused by a violation of that duty ( see generally O'Toole v. City of Yonkers, 107 A.D.3d at 867, 967 N.Y.S.2d 751;Taubenfeld v. Starbucks Corp., 48 A.D.3d 310, 311, 851 N.Y.S.2d 512). Moreover, El Mariachi established, prima facie, that it did not create the defect alleged to have caused the plaintiff's injuries.
In opposition to El Mariachi's prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as the plaintiff ( see Collado v. Cruz, 81 A.D.3d 542, 542, 917 N.Y.S.2d 178).
As to creation of the alleged defect, the plaintiff's expert concluded, among other things, that employees of El Mariachi createdthe dangerous condition by their use of ice-melting agents on the sidewalk. However, the expert's affidavit was conclusory and speculative, as he failed to provide a basis for his conclusions regarding the cause of the alleged defect ( see Martin v. Kone, Inc., 94 A.D.3d 446, 447, 941 N.Y.S.2d 588;Reyes v. City of New York, 29 A.D.3d 667, 667–668, 814 N.Y.S.2d 873;Paladino v. Time Warner Cable of N.Y. City, 16 A.D.3d 646, 648, 793 N.Y.S.2d 63;Matter of Mark v. Schneider, 305 A.D.2d 685, 686, 759 N.Y.S.2d 884). Additionally, the expert's affidavit was based, in part, on facts not supported by the evidence ( see Fenty v. Seven Meadows Farms, Inc., 108 A.D.3d 588, 589, 969 N.Y.S.2d 506;Krash v. Bishop–Sanzari, J.V., 309 A.D.2d 788, 789, 765 N.Y.S.2d 387). Moreover, although the expert is a licensed engineer, he did not establish that he had any specialized knowledge, experience, training, or education regarding sidewalk safety or maintenance so as to qualify him to render an opinion in that area ( see Y.H. v. Town of Ossining, 99 A.D.3d 760, 762, 952 N.Y.S.2d 579;O'Boy v. Motor Coach Indus., Inc., 39 A.D.3d 512, 513–514, 834 N.Y.S.2d 231;Rosen v. Tanning Loft, 16 A.D.3d 480, 481, 791 N.Y.S.2d 641). Thus, the plaintiff failed to raise a triable issue of fact as to whether El Mariachi created the alleged dangerous condition.
The plaintiff's remaining contentions are without merit ( see generally O'Toole v. City of Yonkers, 107 A.D.3d at 867, 967 N.Y.S.2d 751;Berkowitz v. Spring Cr., Inc., 56 A.D.3d at 595–596, 868 N.Y.S.2d 682;Lowenthal v. Theodore H. Heidrich Realty Corp., 304 A.D.2d at 726, 759 N.Y.S.2d 497).
Accordingly, the Supreme Court should have granted El Mariachi's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. DICKERSON, J.P., HALL, ROMAN and COHEN, JJ., concur.