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Leitch-Henry v. The Doe Fund, Inc.

Supreme Court of New York, Second Department

January 8, 2020

Janet Leitch-Henry, respondent,
v.
The Doe Fund, Inc., appellant. Index No. 512775/16

          Argued - October 28, 2019

         D61677 M/htr

          French & Casey, LLP, New York, NY (Grant D. Zacharias of counsel), for appellant.

          Levine and Wiss, PLLC, West Hempstead, NY (Anthony A. Ferrante and Mitchell Dranow of counsel), for respondent.

          MARK C. DILLON, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         In an 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.

         ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

         On the 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.

         The 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.

         As a 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).

         Pursuant 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).

         Here, 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 fact.

         Accordingly, the Supreme Court should have granted the defendant's motion for ...


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