Anna Terilli, Plaintiff–Appellant, v. Nicholas Peluso, et al., Defendants–Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Anna Terilli, Plaintiff–Appellant, v. Nicholas Peluso, et al., Defendants–Respondents.

1175 6

Decided: February 18, 2014

Sweeny, J.P., Renwick, Moskowitz, Richter, Gische, JJ. Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Law Office of James Toomey, New York (Evy L. Kazansky of counsel), for respondents.

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 21, 2013, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was proper in this action where plaintiff was injured when, while walking on the sidewalk in front of defendants' property, her foot became caught in a hole and she fell to the ground.   Defendants showed that their property abutting the sidewalk where plaintiff fell was a single-family, owner-occupied residence, exempt from Administrative Code of City of N.Y. § 7–210, and thus, they had no duty to maintain or repair the flagstone on which plaintiff fell.   Nor did that portion of the sidewalk on which plaintiff fell constitute a special use to defendants, since defendants did not derive any exclusive benefit of the use of the sidewalk, unrelated to public use (see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298–299 [1st Dept 1988], lv dismissed in part, denied in part 73 N.Y.2d 783 [1988] ).   That defendants replaced other flagstones on the sidewalk did not give rise to a duty to repair the entire sidewalk, or the flagstone where plaintiff fell.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK