OATHOUT v. SOIEFER BROS REALTY CORP

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

Curtis B. OATHOUT, et al., Appellants, v. SOIEFER BROS. REALTY CORP., et al., Respondents.

Decided: September 28, 1998

Before BRACKEN, J.P., ROSENBLATT, RITTER and FLORIO, JJ. Nason, Cohen & Krieger, LLP, New York, N.Y. (Brett R. Hupart of counsel), for appellants. Hawkins Feretic Daly Maroney & Hayes, P.C., New York, N.Y. (Philip B. Murphy and Sean M. Prendergast of counsel), for respondent Soiefer Bros. Realty Corp. Anne D. Pope, New York, N.Y. (Robert R. Groezinger of counsel), for respondent Daving Quality Paper Corp.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated September 15, 1997, which granted the separate motions of the defendant Soiefer Bros. Realty Corp. and the defendant Daving Quality Paper Corp for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff Curtis B. Oathout allegedly slipped and fell on snow and ice while making a delivery to the defendant Daving Quality Paper Corp. (hereinafter Daving).   The fall occurred in the sloped driveway to the premises, which traversed a public sidewalk.   Daving leases the premises from the defendant Soiefer Bros. Realty Corp. (hereinafter Soiefer).   The plaintiffs then commenced this action, and the defendants moved for summary judgment dismissing the complaint.   The defendants argued, inter alia, that they could not be held liable for Oathout's injuries because there was no statute or ordinance imposing liability upon them for injuries arising from the failure to clear snow and ice from a public sidewalk.   The plaintiffs opposed the motions, arguing that the defendants could be held liable for the injuries at issue because their special use of the sidewalk as a driveway resulted in a defective and dangerous condition.   Further, the plaintiffs argued, for the same reasons, that the defendants could be found to have created such a dangerous and defective condition.   In the order appealed from, the Supreme Court dismissed the complaint and all cross claims insofar as asserted against both defendants.   We affirm.

The plaintiffs do not dispute that there was no relevant statute or ordinance imposing liability on the defendants for the failure to clear snow and ice from the public sidewalk (see, Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59, 248 N.E.2d 896;  Norcott v. Central Iron Metal Scraps, 214 A.D.2d 660, 625 N.Y.S.2d 260;  Administrative Code of the City of N.Y. § 16-123).   Moreover, the plaintiffs failed to raise a triable issue of fact that the defendants created a dangerous or defective condition or caused such a condition by their special use of the sidewalk.   Therefore, the defendants' motions for summary judgment were properly granted (see, Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Roark v. Hunting, supra;   Nguyen v. Brentwood School Dist., 239 A.D.2d 406, 658 N.Y.S.2d 343;   Rubenstein v. DeGeorgio, 236 A.D.2d 383, 654 N.Y.S.2d 318;  Alessi v. Zapolsky, 228 A.D.2d 531, 644 N.Y.S.2d 549).

MEMORANDUM BY THE COURT.

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