Summary
In Stephens, judgment was granted in the property owner's favor because the plaintiff came forward with no evidence to suggest that the condition was caused or created by the owner or that it arose out of the owner's special use of the sidewalk.
Summary of this case from Early v. Hilton Hotels Corp.Opinion
March 24, 1998
Appeal from the Supreme Court, New York County (Norman Ryp, J.).
Plaintiff was injured when she fell while walking on the public sidewalk in front of defendant Stetson's premises. Allegedly, plaintiff's feet became entangled in a plastic band, of the "kind used to bundle newspaper or magazines", and, as she took a step, she fell to the sidewalk. Near the accident scene, on the sidewalk, was a full trash basket, from which she had seen newspapers blowing. The IAS Court denied defendant's summary judgment motion, finding an issue of fact as to whether defendant knew or should have known of the presence of the plastic band. In so ruling, the IAS Court ignored the primary issue, whether defendant owed a duty to plaintiff, and ruled on a subsidiary question, which, absent a legal duty, is irrelevant.
A sidewalk is part of the public street or highway and, therefore, the duty of maintaining it in a reasonably safe condition generally is on the municipality, not the abutting landowner. ( City of Rochester v. Campbell, 123 N.Y. 405.) Of course, if the allegedly defective sidewalk condition was caused or created by the abutting owner or arose out of the abutting owner's special use of the sidewalk, the owner would be liable. ( Montalvo v. Western Estates, 240 A.D.2d 45; PJI 2:111.) Here, neither of these circumstances is even suggested, much less shown to exist. The complaint should have been dismissed.
Concur — Sullivan, J. P., Wallach, Rubin, Williams and Tom, JJ.