WARREN v. LEONE (2002)

Plaintiffs appeal from a judgment entered upon a jury verdict of no cause for action in this personal injury action.   At approximately 9:30 p.m. on December 19, 1998, William Warren (plaintiff) made a pizza delivery to defendant's home as a favor to friends who were employed at the restaurant from which the pizza was ordered.   Plaintiff stepped from his vehicle and began walking toward defendant's house, selecting a route near the boundary of defendant's property between two cars that were parked in front of defendant's house.   Plaintiff stumbled and fell several feet from his vehicle, breaking his ankle.   Plaintiffs commenced this action alleging, inter alia, that plaintiff fell as the result of a dangerous condition on defendant's property.   In her answer defendant denied the allegation in the complaint that the fall had occurred on her property.

 In returning a verdict of no cause for action, the jury responded in the negative to the question on the verdict sheet, “Did this fall occur on defendant's property?”   We reject plaintiffs' contention that Supreme Court erred in submitting that question to the jury.  “Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises” (Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105, lv. denied in part and dismissed in part 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671;  see Brown v. Congel, 241 A.D.2d 880, 881, 660 N.Y.S.2d 507).   Here, plaintiffs alleged that defendant was liable as the owner of the property where plaintiff fell and, alternatively, that defendant's liability was predicated upon defendant's special use of the property.   Thus, in the absence of a duty of care premised on ownership or a special use, defendant cannot be held liable in negligence for plaintiff's injury (see Brown, 241 A.D.2d at 881, 660 N.Y.S.2d 507;  Balsam, 139 A.D.2d at 296-297, 532 N.Y.S.2d 105).   Contrary to plaintiffs' contention, defendant placed ownership of the property at issue by denying ownership in her answer, and she was not required to plead lack of ownership as an affirmative defense in order to place that issue before the jury (see Stevens v. Northern Lights Assoc., 229 A.D.2d 1001, 1002, 645 N.Y.S.2d 193;  see also Millard v. City of Ogdensburg, 274 A.D.2d 953, 710 N.Y.S.2d 507).   Also contrary to plaintiffs' contention, the court properly refused to charge the jury on special use because plaintiffs failed to present evidence that would support a finding of special use (see generally Kaufman v. Silver, 90 N.Y.2d 204, 659 N.Y.S.2d 250, 681 N.E.2d 417).   Finally, we conclude that the verdict is not against the weight of the evidence inasmuch as plaintiffs offered no proof that defendant owned the property where plaintiff fell, nor did defendant admit ownership (see generally Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: