TIRALONGO v. Morris Benun, et al., appellants. (2007)

In an action to recover damages for personal injuries, etc., the defendant Ronald Benun, as executor of the estate of Sarah Benun, appeals and the defendants Sarah Morris Benun and Morris Benun purportedly appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated December 16, 2005, which denied the motion of the defendant Ronald Benun, as executor of the estate of Sarah Benun, and purportedly of the defendants Sarah Morris Benun and Morris Benun for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the appeals purportedly taken by the defendants Sarah Morris Benun and Morris Benun are dismissed on the ground that the order is a nullity as against those defendants as they died before the order appealed from was made, the portion of the order which denied that branch of the motion purportedly made by the deceased defendants is vacated, and the complaint and all cross claims insofar as asserted against them is dismissed;  and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant Ronald Benun;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The defendant Morris Benun died before the instant action was commenced.   The defendant Sarah Morris Benun died before the order appealed from was issued and before the underlying motion for summary judgment was made.   Accordingly, the portion of the order relating to them must be vacated and the appeals purportedly taken by those defendants must be dismissed (see Zito v. City of New York, 293 A.D.2d 469, 470, 739 N.Y.S.2d 465;  see also Jordan v. City of New York, 23 A.D.3d 436, 437, 807 N.Y.S.2d 595;  Golia v. Golia, 286 A.D.2d 368, 369, 728 N.Y.S.2d 708;  Cooper v. Volk, 157 A.D.2d 766, 767, 551 N.Y.S.2d 771).

  “An owner of land does not, solely by reason of being an abutting owner, owe a duty to keep the public sidewalk in a safe condition” (Flores v. Baroudos, 27 A.D.3d 517, 517, 811 N.Y.S.2d 757;  see Pinn v. Baker's Variety, 32 A.D.3d 463, 464, 820 N.Y.S.2d 129;  Alekperova v. Yuger, 29 A.D.3d 610, 611, 815 N.Y.S.2d 192).  “However exceptions to this general rule exist, and liability may be imposed upon on abutting landowner where, inter alia, the abutting landowner created the hazardous condition by negligently repairing the sidewalk” (Immerman v. City of New York, 22 A.D.3d 726, 727, 804 N.Y.S.2d 90).   Here, the proof submitted by the defendant Ronald Benun in support of the motion for summary judgment was insufficient to establish that his parents neither repaired nor hired anyone to repair the portion of the sidewalk where the injured plaintiff's accident allegedly occurred (see Immerman v. City of New York, supra;  cf. Nilsen v. City of New York, 28 A.D.3d 625, 626, 812 N.Y.S.2d 377;  Rendon v. Castle Realty, 28 A.D.3d 532, 532-533, 813 N.Y.S.2d 479;  Cordova v. Vinueza, 20 A.D.3d 445, 446, 798 N.Y.S.2d 519;  Angulo v. City of New York, 5 A.D.3d 707, 708, 773 N.Y.S.2d 573;  Diaz v. Vieni, 303 A.D.2d 713, 713-714, 758 N.Y.S.2d 98;   Ritts v. Teslenko, 276 A.D.2d 768, 769, 715 N.Y.S.2d 418;  Capobianco v. Mari, 267 A.D.2d 191, 192, 699 N.Y.S.2d 487;  Palazzo v. City of New Rochelle, 236 A.D.2d 528, 529, 654 N.Y.S.2d 612).   Accordingly, the Supreme Court properly denied the motion for summary judgment.