Supreme Court, Appellate Division, Second Department, New York.
Joyce BOUSQUET, appellant, v. WATER VIEW REALTY CORP., respondent, et al., defendant (and a third-Party action).
Decided: May 02, 2018
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, HECTOR D. LASALLE, JJ.
Cannon & Acosta, LLP, Huntington Station, N.Y. (Marijane McQueeney of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael T. Reagan of counsel), for respondent. Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Sarah M. Ziolkowski of counsel), for third-party defendant.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Angela G. Iannacci, J.), entered April 6, 2017. The order, insofar as appealed from, granted that branch of the motion of the defendant Water View Realty Corp. which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly sustained personal injuries when she tripped and fell on an uneven condition on a sidewalk abutting property owned by the defendant Water View Realty Corp. (hereinafter Water View) in the Village of Freeport. The plaintiff commenced this action against Water View and the Village. Water View, inter alia, moved for summary judgment dismissing the complaint insofar as asserted against it, and the Supreme Court granted that branch of the motion. The plaintiff appeals.
“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous [or] defective conditions to public sidewalks is placed on the municipality and not the abutting landowner” (Hausser v. Giunta, 88 N.Y.2d 449, 452–453, 646 N.Y.S.2d 490, 669 N.E.2d 470; see Brennan v. Town of N. Hempstead, 122 A.D.3d 892, 997 N.Y.S.2d 473). “An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty” (Petrillo v. Town of Hempstead, 85 A.D.3d 996, 997, 925 N.Y.S.2d 660; see Bachvarov v. Lawrence Union Free Sch. Dist., 131 A.D.3d 1182, 17 N.Y.S.3d 168; Peretz v. Village of Great Neck Plaza, 130 A.D.3d 867, 868, 14 N.Y.S.3d 113; Maya v. Town of Hempstead, 127 A.D.3d 1146, 8 N.Y.S.3d 372).
Here, Water View established, prima facie, that it did not create the alleged condition or cause the condition through a special use of the sidewalk. Additionally, although section § 180–2 of the Code of the Village of Freeport requires an abutting landowner to keep a sidewalk in good and safe repair, it does not specifically impose tort liability for a breach of that duty (see Obee v. Ricotta, 140 A.D.3d 1134, 1135, 35 N.Y.S.3d 386; Lahens v. Town of Hempstead, 132 A.D.3d 954, 956, 18 N.Y.S.3d 187; Brennan v. Town of N. Hempstead, 122 A.D.3d at 893, 997 N.Y.S.2d 473). In opposition, the plaintiff failed to raise a triable issue of fact as to whether Water View created the alleged defect in the sidewalk. The plaintiff's expert's affidavit and report were conclusory and insufficient to raise a triable issue of fact (see Escobar v. Lowe Props., LLC, 145 A.D.3d 665, 666, 43 N.Y.S.3d 119; Koelling v. Central Gen. Community Servs., Inc., 132 A.D.3d 734, 737, 18 N.Y.S.3d 95). In light of the above determination, it is not necessary to address the parties' remaining contentions.
Accordingly, the Supreme Court property granted that branch of Water View's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.
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