Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered November 16, 2010, deemed from a judgment of the same court entered February 22, 2011 (see CPLR 5501 [c]).
Melendez v Howland Hook Hous. Co., Inc.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ
The judgment, entered pursuant to the November 16, 2010 order granting defendant's motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is reversed, without costs, the order granting defendant's motion for summary judgment dismissing the complaint is vacated and defendant's motion is denied.
In this action to recover for personal injuries and property damage, plaintiff alleges, among other things, that he suffered a serious injury as defined by Insurance Law § 5102 (d) and that his vehicle sustained property damage when his vehicle drove into a pothole on defendant's property. The complaint alleges that defendant had a duty to maintain and control the roadway where the pothole was located and that the accident was caused solely by defendant's negligence. Plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the issue of liability. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Liability for a dangerous or defective condition on real property is generally predicated upon ownership, occupancy, control or special use of the property (see Seaman v Three Vil. Garden Club, Inc., 67 AD3d 889 ; Breland v Bayridge Air Rights, Inc., 65 AD3d 559 ). "The existence of one or more of these elements is sufficient to give rise to a duty of care" (Balsam v Delma Eng'g Corp., 139 AD2d 292, 298 ). In the present case, defendant failed to establish as a matter of law that it did not own or exercise control over the roadway in question. Accordingly, defendant's motion for summary judgment dismissing the complaint should have been denied.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: May 15, 2012
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