HUGHES v. Queens Garden Center & Florist, Inc., Third-Party Defendant. (2003)

In an action to recover damages for personal injuries, the defendant Flushing Savings Bank appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered July 29, 2002, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

 The plaintiff allegedly was injured when she tripped and fell on a public sidewalk in front of a building owned by the defendant Flushing Savings Bank (hereinafter FSB).  As stated by the Court of Appeals in the case of Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470, “[g]enerally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner (City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937;  see Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896).”   There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable.   Liability to abutting landowners may be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner (see Clifford v. Dam, 81 N.Y. 52), where the abutting owner affirmatively caused the defect (see Colson v. Wood Realty Co., 39 A.D.2d 511, 512, 337 N.Y.S.2d 487), where the abutting landowner negligently constructed or repaired the sidewalk, and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty (see Willis v. Parker, 225 N.Y. 159, 121 N.E. 810;  see also Martinez v. City of New York, 270 A.D.2d 235, 704 N.Y.S.2d 278;  Bogomolsky v. City of New York, 259 A.D.2d 719, 687 N.Y.S.2d 176).

 Here, FSB established a prima facie case that none of the circumstances enumerated above which could impose liability upon it was present.   In opposition, the plaintiff failed to raise a triable issue of fact (see Hausser v. Giunta, supra).

Accordingly, FSB is entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against it.