RODRIGUEZ v. 250 (2008)

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered August 9, 2006, which denied the motion of defendant 250 Mona Corp. for summary judgment, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment in favor of defendant 250 Mona Corp. dismissing the complaint as against said defendant.

Plaintiff tripped and fell on a City sidewalk in front of defendant supermarket in August 2001.  Prior to enactment of New York City Administrative Code § 7–210 in 2003, the duty to maintain public sidewalks rested with the City (Rodriguez v. City of New York, 12 A.D.3d 282, 784 N.Y.S.2d 855 [2004] ), and an abutting landowner would be liable only if it had created the defective condition or made a special use of the sidewalk (Cobo v. City of New York, 266 A.D.2d 121, 698 N.Y.S.2d 672 [1999] ).

Contrary to the court's conclusion, 250 Mona Corp. established its entitlement to summary judgment in the absence of sufficient evidence that it had created the condition or made a special use of the sidewalk (see Romero v. ELJ Realty Corp., 38 A.D.3d 263, 831 N.Y.S.2d 72 [2007] ).  The mere ownership of the abutting property by 250 Mona Corp. does not raise an issue of fact as to whether a special use of the sidewalk was being made.  The occasional use of the side of the store for deliveries does not constitute a special use as that term has been construed (Kaminer v. Dan's Supreme Supermarket/Key Food, 253 A.D.2d 657, 677 N.Y.S.2d 553 [1998];  see Tyree v. Seneca–Ctr. Home Attendant Program, 260 A.D.2d 297, 689 N.Y.S.2d 61 [1999] ).