PORTANOVA v. DYNASTY MEAT CORP

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

Lillian PORTANOVA, Respondent, v. DYNASTY MEAT CORP., d/b/a Food Dynasty Supermarket, Appellant.

Decided: September 30, 2002

MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, HOWARD MILLER, and THOMAS A. ADAMS, JJ. Steven G. Fauth, New York, N.Y. (Brian C. McSharry of counsel), for appellant. Litman & Litman, P.C., New York, N.Y. (Jeffrey E. Litman of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Queens County (Golia, J.), dated February 26, 2002, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff commenced the instant action to recover damages for personal injuries allegedly suffered by her when she slipped on “blood from meat, pieces of skin, chicken and grease” on a public sidewalk adjacent to the defendant's supermarket.   The defendant moved for summary judgment dismissing the complaint.   The Supreme Court denied the motion, finding that there were questions of fact.

 The owner or the lessee of land abutting a public sidewalk owes no duty to keep the sidewalk in a safe condition (see Hausser v. Giunta, 88 N.Y.2d 449, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Lattanzi v. Richmond Bagels, 291 A.D.2d 434, 737 N.Y.S.2d 391;  Reinoso v. City of New York, 288 A.D.2d 455, 733 N.Y.S.2d 130).   However, the abutting landowner or lessee may be held liable where he creates a hazardous condition on the sidewalk (see Reinoso v. City of New York, supra).

 In the instant case, the defendant met its initial burden of showing, as a matter of law, that it did not create the condition upon which the plaintiff slipped (see Hausser v. Giunta, supra;  Lattanzi v. Richmond Bagels, supra).   In opposition to the defendant's prima facie showing in support of its motion for summary judgment, the plaintiff failed to raise a triable issue of fact to show that the defendant created the allegedly hazardous condition on the sidewalk (see Vinicio v. Marriott Corp., 217 A.D.2d 656, 629 N.Y.S.2d 799).   There is no evidence, only speculation, that the allegedly hazardous condition was caused by the defendant (see Lattanzi v. Richmond Bagels, supra;  Breuer v. Wal-Mart Stores, 289 A.D.2d 276, 734 N.Y.S.2d 204;   Reinoso v. City of New York, supra;  Licatese v. Waldbaums, Inc., 277 A.D.2d 429, 717 N.Y.S.2d 226;  Ramatowski v. City of New York, 284 A.D.2d 318, 725 N.Y.S.2d 569;  Goldman v. Waldbaum, Inc., 248 A.D.2d 436, 669 N.Y.S.2d 669).   Therefore, the defendant's motion for summary judgment should have been granted.

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