KLINE v. Dunkin Donuts, et al., Defendants-Appellants. (2002)

In an action to recover damages for personal injuries, etc., the defendants Dunkin Donuts, Delphi Donuts Corp., d/b/a Dunkin Donuts, and Arma Andon appeal from an order of the Supreme Court, Queens County (Flug, J.), dated November 26, 2001, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs, the motion is granted, the complaint and cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.

Injured plaintiff Ruth Kline allegedly sustained personal injuries when she tripped and fell on a sidewalk located adjacent to the appellants' property.   Contrary to the Supreme Court's determination, the appellants are entitled to summary judgment dismissing the complaint and cross claims insofar as asserted against them.  “An owner of premises that abut a public sidewalk is not liable to a pedestrian injured as a result of a defect in the sidewalk unless the owner affirmatively caused the defect or negligently constructed or repaired the sidewalk, or caused the defect to occur because of some special use, or unless a statute or ordinance placed an obligation on the owner to maintain the sidewalk and expressly makes the owner liable for injuries occasioned by the failure to perform that duty” (Rosetti v. City of Yonkers, 288 A.D.2d 288, 289, 732 N.Y.S.2d 879;  see Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Sverdlin v. Gruber, 289 A.D.2d 475, 476, 735 N.Y.S.2d 166;  Reinoso v. City of New York, 288 A.D.2d 455, 733 N.Y.S.2d 130;  Kent v. City of New York, 284 A.D.2d 375, 376, 725 N.Y.S.2d 896).   As none of the above-mentioned exceptions is applicable in the instant case, the appellants are entitled to summary judgment.   The Supreme Court's determination that there was a special use of the sidewalk by the appellants is not supported by evidence in the record.