ROCCO v. Linda Marder, respondent.

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

Lorraine ROCCO, appellant, v. Russell MARDER, defendant, Linda Marder, respondent.

Decided: July 24, 2007

REINALDO E. RIVERA, J.P., GABRIEL M. KRAUSMAN, PETER B. SKELOS, and RUTH C. BALKIN, JJ. Michael Levine, Brooklyn, N.Y. (Thomas Torto of counsel), for appellant. Harold Samuel Herman, New York, N.Y., for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (McMahon, J.), dated January 27, 2006, which granted the motion of the defendant Linda Marder for summary judgment dismissing the complaint insofar as asserted against her, and (2) a judgment of the same court dated March 2, 2006, which, upon the order, dismissed the complaint insofar as asserted against the defendant Linda Marder.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Linda Marder.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

 Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner (see Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Bruno v. City of New York, 36 A.D.3d 640, 829 N.Y.S.2d 150).   However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner negligently constructed or repaired the sidewalk, otherwise caused the defective condition, including causing the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligated the owner to maintain the sidewalk (see Hausser v. Giunta, supra at 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Cannizzaro v. Simco Mgt. Co., 26 A.D.3d 401, 809 N.Y.S.2d 196;  Nichilo v. B.F.N. Realty Assoc., Inc., 19 A.D.3d 666, 798 N.Y.S.2d 487;  Packer v. City of New York, 282 A.D.2d 587, 723 N.Y.S.2d 378).   An out of possession owner cannot be held liable unless she exercised some control over the sidewalk or was contractually obligated to repair the unsafe condition (see Flores v. Baroudos, 27 A.D.3d 517, 811 N.Y.S.2d 757;   Beda v. City of New York, 4 A.D.3d 317, 772 N.Y.S.2d 339).

 The defendant Linda Marder submitted evidence sufficient to establish, prima facie, that she was an out of possession owner who did not retain control over the sidewalk area and had no duty to maintain the sidewalk (see Beda v. City of New York, supra;  Schreiber v. Goldlein Realty Corp., 251 A.D.2d 315, 673 N.Y.S.2d 723).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.

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