BIONDI v. Barneys Hardware, Inc., et al., respondents. (2008)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated September 11, 2006, as granted that branch of the motion of the defendants Barneys Hardware, Inc., Donald Katz, and Caroline Katz which was for summary judgment dismissing the complaint insofar as asserted against them and denied that branch of his separate motion which was to strike his note of issue and certificate of readiness, in effect, in order to depose the defendant Caroline Katz.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner (see Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Bruno v. City of New York, 36 A.D.3d 640, 829 N.Y.S.2d 150).   However, an abutting landowner or tenant will be liable to a pedestrian injured by a defect in a sidewalk where the landowner or the tenant negligently constructed or repaired the sidewalk, otherwise caused the defective condition, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk (see Hausser v. Giunta, 88 N.Y.2d at 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Cannizzaro v. Simco Mgt. Co., 26 A.D.3d 401, 401-402, 809 N.Y.S.2d 196;  Packer v. City of New York, 282 A.D.2d 587, 723 N.Y.S.2d 378).

 Here, the defendants Barneys Hardware, Inc., Donald Katz, and Caroline Katz (hereinafter collectively the defendants) made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that none of the elements necessary to impose liability upon an abutting landowner or tenant are present.   In response, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Cannizzaro v. Simco Mgt. Co., 26 A.D.3d at 402, 809 N.Y.S.2d 196).

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to strike his note of issue and certificate of readiness, in effect, in order to depose the defendant Caroline Katz (see 22 NYCRR 202.21[e];  Utica Mut. Ins. Co. v. P.M.A. Corp., 34 A.D.3d 793, 794, 826 N.Y.S.2d 138;  Francis v. Board of Educ. of City of Mount Vernon, 278 A.D.2d 449, 717 N.Y.S.2d 660).