& Casey, LLP, New York, NY (Grant D. Zacharias of
counsel), for appellant.
and Wiss, PLLC, West Hempstead, NY (Anthony A. Ferrante and
Mitchell Dranow of counsel), for respondent.
C. DILLON, J.P., RUTH C. BALKIN, FRANCESCA E. CONNOLLY,
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendant appeals from an order of the Supreme Court, Kings
County (Loren Baily-Schiffman, J.), dated May 2, 2019. The
order denied the defendant's motion for summary judgment
dismissing the complaint.
that the order is reversed, on the law, with costs, and the
defendant's motion for summary judgment dismissing the
complaint is granted.
afternoon of July 24, 2013, the plaintiff allegedly tripped
and fell on a sidewalk defect near the front entrance of a
building in Brooklyn. The building consisted of three stories
and a basement. The building was owned by the plaintiff's
employer, which leased the basement to the defendant.
plaintiff subsequently commenced this personal injury action
against the defendant. The defendant moved for summary
judgment dismissing the complaint, contending, inter alia,
that it had no contractual or common-law duty to maintain the
area where the accident occurred. The Supreme Court denied
the motion, and the defendant appeals.
general rule, liability for a dangerous or defective
condition on property is predicated upon ownership,
occupancy, control, or special use of the property (see
Ruffino v New York City Tr. Auth., 55 A.D.3d 817, 818).
A tenant of property abutting 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 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 lessee the obligation
to maintain the sidewalk which imposes liability upon the
lessee for injuries caused by a violation of that duty"
(Martin v Rizzatti, 142 A.D.3d 591, 592-593; see
Torres v City of New York, 153 A.D.3d 647, 648;
O'Toole v City of Yonkers, 107 A.D.3d 866, 867).
to Administrative Code of the City of New York §
7-210(a), "the owner of real property abutting any
sidewalk" has a duty "to maintain such sidewalk in
a reasonably safe condition." "Notwithstanding any
other provision of law, the owner of real property abutting
any sidewalk... shall be liable for any injury to property or
personal injury, including death, proximately caused by the
failure of such owner to maintain such sidewalk in a
reasonably safe condition" (Administrative Code §
7-210[b]). "As a general rule, the provisions of a lease
obligating a tenant to repair the sidewalk do not impose on
the tenant a duty to a third party" (Hsu v City of
New York, 145 A.D.3d 759, 760; see Torres v City of
New York, 153 A.D.3d at 649; Martin v Rizzatti,
142 A.D.3d at 593; Paperman v 2281 86th St. Corp.,
142 A.D.3d 540, 541). "However, where a lease agreement
is so comprehensive and exclusive as to sidewalk maintenance
as to entirely displace the landowner's duty to maintain
the sidewalk, the tenant may be liable to a third party"
(Paperman v 2281 86th St. Corp., 142 A.D.3d at 541
[internal quotation marks omitted]; see Espinal v
Melville Snow Contrs., 98 N.Y.2d 136, 138; Hsu v
City of New York, 145 A.D.3d at 760-761).
the defendant established its prima facie entitlement to
judgment as a matter of law by demonstrating that it did not
create the alleged defect, make special use of the sidewalk,
violate any applicable statute, or have a contractual duty to
maintain the sidewalk where the accident occurred (see
Padarat v New York City Tr. Auth., 175 A.D.3d 700;
Martin v Rizzatti, 142 A.D.3d at 593). In
opposition, the plaintiff failed to raise a triable issue of
the Supreme Court should have granted the defendant's
motion for ...