Maria C. Llanos, appellant,
Rita Stark, as executrix of the estate of Fred Stark; Rita Stark, individually, et al., respondents. Index No. 16967/10
Berkman Law Office, LLC, Brooklyn, NY (Robert J. Tolchin of
counsel), for appellant.
Rosenbaum & Taylor, P.C., White Plains, NY (Dara L.
Rosenbaum and Scott Taylor of counsel), for respondent Rita
Stark, as executrix of the estate of Fred Stark; Rita Stark,
Zachary W. Carter, Corporation Counsel, New York, NY (Susan
Greenberg and Melanie T. West of counsel), for respondent
City of New York.
REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from so much of an order of the Supreme
Court, Kings County (Jimenez-Salta, J.), dated December 5,
2014, as granted the defendants' separate motions for
summary judgment dismissing the complaint insofar as asserted
against each of them.
that the order is reversed insofar as appealed from, on the
law, with one bill of costs, and the defendants' separate
motions for summary judgment dismissing the complaint insofar
as asserted against each of them are denied.
plaintiff allegedly was injured when she stepped into a
pothole while crossing Atkins Avenue in Brooklyn, just
outside the gate of the tenants' parking lot for the
Arlington Village apartment complex (hereinafter Arlington
Village) where she lived. The plaintiff commenced this action
against the owner of Arlington Village, the defendant Rita
Stark, as executrix of estate of Fred Stark, and Rita Stark,
individually (hereinafter the owner), and the defendant City
of New York, to recover damages for her alleged personal
injuries. The City and the owner separately moved for summary
judgment dismissing the complaint insofar as asserted against
each of them. The Supreme Court granted both motions, and the
plaintiff appeals. We reverse.
as relevant here, pursuant to Administrative Code of the City
of New York § 7-201(c)(2), no civil action may be
maintained against the City for personal injuries sustained
as a consequence of an alleged dangerous condition in the
roadway unless written notice of the defective condition was
actually given to the appropriate person authorized to
receive such notice, or there is a written acknowledgment
from the City of the defective condition (see Bruni v
City of New York, 2 N.Y.3d 319, 324; DeGroat v City
of New York, 148 A.D.3d 670). The City failed to
establish, prima facie, the absence of a written
acknowledgment of the alleged dangerous condition. Documents
produced by the City's Department of Transportation
demonstrated that the City acknowledged in writing that a
pothole existed in the vicinity of the plaintiff's
accident (see Bruni v City of New York, 2 N.Y.3d at
325; DeGroat v City of New York, 148 A.D.3d 670).
Any dispute as to the precise location of the noticed pothole
is a question of fact for the jury (see Donnellan v City
of New York, 112 A.D.3d 780, 781; Almadotter v City
of New York, 15 A.D.3d 426, 427; Quinn v City of New
York, 305 A.D.2d 570, 571). Accordingly, the Supreme
Court should have denied the City's motion regardless of
the sufficiency of the plaintiff's opposing papers
(see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d
the owner failed to meet her prima facie burden. Generally,
liability for injuries sustained as a result of a dangerous
condition on a public sidewalk or street "is placed on
the municipality and not the abutting landowner"
(Hausser v Giunta,88 N.Y.2d 449, 452-453; see
Grier v 35-63 Realty, Inc.,70 A.D.3d 772, 773).
However, liability may be imposed on an abutting property
owner where, inter alia, the owner of the abutting property
caused the condition to occur through a special use of that
area (see Lewis v Palazzolo,143 A.D.3d 783, 785;
Ankin v Spitz,129 A.D.3d 1001, 1002). Here, the
owner failed to demonstrate, prima facie, that she did not
cause the alleged condition to occur because of some special
use. The record establishes that the area where the plaintiff
was injured was at the dead-end of Atkins Avenue, which was
bordered on each side by Arlington Village apartment
buildings. Indeed, part of Atkins Avenue is used for a
parking lot solely for the benefit of Arlington Village
tenants. The parking lot is partitioned from Atkins Avenue by
chain link fencing and a gate maintained by the owner. The
garbage dumpsters maintained for use by the tenants of
Arlington Village are kept in the parking lot. There are no
sidewalks in the dead-end area of Atkins Avenue. Accordingly,
the roadway was used by tenants and employees of Arlington
Village as a walkway, as a driveway for their vehicles, and
as a driveway and walkway to access the adjacent parking lot
and the garbage dumpsters. Thus, the owner failed to
establish, prima facie, that she did not derive a special use
from the area which contained the defect. Furthermore,
"[w]hether an entity is liable for creating a defect as
a special user is generally a question for the jury"
(Posner v New York City Tr. Auth.,27 A.D.3d 542,
544). Here, the Supreme Court erred in its determination that
the owner derived no special benefit from the location of the
defect which was unrelated to the ...