INFANTE v. [And Other Actions] (1999)

Judgment, Supreme Court, New York County (Stephen Crane, J., and a jury), entered August 6, 1998, awarding plaintiff unapportioned damages of, inter alia, $80,000 for past pain and suffering and $150,000 for future pain and suffering, following a second trial limited to the issues of such damages, and bringing up for review an order, same court and Justice, entered on or about February 6, 1998, which, inter alia, denied defendants-appellants' motions to set aside the verdict on liability, and granted plaintiff's motion for a new trial unless defendants stipulated to an increase in the unapportioned damages for past pain and suffering from $40,000 to $100,000 and for future pain and suffering from $15,000 to $70,000, unanimously modified, on the law, to set aside the verdict as to defendant Wolf and dismiss the complaint as against him, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendant Wolf dismissing the complaint as against him.   Appeal from the order of February 6, 1998, unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

 The use of the public sidewalk as a driveway and parking lot for the gas station owned by defendant Mercado, on abutting property he leased from defendant Getty Petroleum Corp., which in turn leased it from defendant Wolf, the owner, was a special use, and there was sufficient evidence to establish that such special use caused the defect in the sidewalk that caused plaintiff to fall (see, Mincey v. Mensch, 253 A.D.2d 656, 677 N.Y.S.2d 362;  Nguyen v. Brentwood School Dist., 239 A.D.2d 406, 407, 658 N.Y.S.2d 343).   While there was also sufficient evidence that Getty had knowledge of the special use and the defect, there was no evidence of such knowledge on the part of Wolf, the out-of-possession landlord, and thus the complaint as against him should have been dismissed (see, DiRende v. Cipollaro, 234 A.D.2d 78, 650 N.Y.S.2d 695, lv. denied 90 N.Y.2d 806, 663 N.Y.S.2d 511, 686 N.E.2d 223).

Defendants' objection to the trial court's jury charge is unpreserved for appellate review (see, DeLong v. County of Erie, 60 N.Y.2d 296, 306, 469 N.Y.S.2d 611, 457 N.E.2d 717), and the complaint and cross claims against the City of New York was properly dismissed since there was no prior written notice (see, Sandler v. New York City Tr. Auth., 188 A.D.2d 335, 591 N.Y.S.2d 17).

We have considered defendants-appellants' other contentions and find them to be unavailing.

MEMORANDUM DECISION.