SCHAAL v. CITY OF UTICA (2004)

Court of Appeals of New York.

Randy J. SCHAAL, as Trustee in Bankruptcy on Behalf of Nancy Montero and Another, Appellant, v. CITY OF UTICA et al., Respondents, et al., Defendant.

Decided: October 21, 2004

Gustave J. DeTraglia, Jr., Utica, for appellant. Linda Sullivan Fatata, Corporation Counsel, Utica (Joseph P. Giruzzi of counsel), for City of Utica, respondent. Costello, Cooney & Fearon, PLLC, Syracuse (Brendan J. Reagan of counsel), for 200 Genesee Street, Inc. and another, respondents.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division correctly determined that plaintiff's speculative assertions failed to raise an issue of fact with respect to defendant City of Utica's alleged creation of a dangerous sidewalk condition. Similarly, plaintiff adduced no evidence in support of the theory that defendant hotel had a duty to maintain the public sidewalk adjoining its property because the hotel used the sidewalk for a special purpose (see generally Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318 [1995] ). In light of the completion of discovery in an earlier action involving the same allegations and parties and plaintiff's failure to request additional discovery in this action, summary judgment was not prematurely granted (see Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023, 1026, 462 N.Y.S.2d 438, 448 N.E.2d 1349 [1983] ).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

MEMORANDUM.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.

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