WEITZ v. Martin Krenza, et al., Third-Party Defendants-Appellants.

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

Christopher WEITZ, et al., Plaintiffs, v. Steve Patrick McMAHON, Defendant, Town of Brookhaven, Defendant Third-Party Plaintiff-Respondent; Martin Krenza, et al., Third-Party Defendants-Appellants.

Decided: July 27, 1998

Before ROSENBLATT, J.P., SULLIVAN, JOY, ALTMAN and LUCIANO, JJ. Jacobson & Schwartz, Rockville Centre (Rhonda H. Barry, of counsel), for appellants. Ahmuty, Demers & McManus, Albertson (Fredrick B. Simpson and Brendan Fitzpatrick, of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the third-party defendants, Martin Krenza and Michelle Krenza, appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated October 6, 1997, which denied their motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

 The plaintiffs alleged that the injuries sustained by the plaintiff driver in a collision with the defendant Steve Patrick McMahon at an intersection in the Town of Brookhaven were caused, in part, when McMahon drove through a stop sign because the sign was obscured by overhanging branches and foliage.   The Town of Brookhaven commenced a third-party action against Martin Krenza and Michelle Krenza, the owners of the premises located at the corner of the intersection where the stop sign is located.   The Krenzas moved for summary judgment, contending that they did not own the strip of land on which the stop sign was located and that they do not maintain the trees and shrubs which allegedly obscured the stop sign.   The Supreme Court denied the motion.   We reverse.

 “[T]here is no common-law duty of a landowner to control the vegetation on his or her property for the benefit of users of a public highway” (Ingenito v. Robert M. Rosen, P.C., 187 A.D.2d 487, 488, 589 N.Y.S.2d 574;  see also, Cain v. Pappalardo, 225 A.D.2d 1005, 1006, 639 N.Y.S.2d 570;  Barnes v. Stone-Quinn, 195 A.D.2d 12, 14, 606 N.Y.S.2d 485).   Therefore, even if the Krenzas owned the strip of land on which the stop sign was located, the Krenzas had no common-law duty to control the vegetation on the property for the benefit of users of the public street.   In addition, the Town failed to cite any ordinances or statutes which would impose a duty on the Krenzas to control the vegetation near the stop sign (see, Barnes v. Stone-Quinn, supra, at 14-15, 606 N.Y.S.2d 485).   Accordingly, the Krenzas were entitled to judgment as a matter of law.

 Furthermore, if the Town of Brookhaven owns the strip of land on which the stop sign is located, as alleged by the Krenzas, the Krenzas still would be entitled to summary judgment since they have established that they did not create the defective condition which caused the injury, that the public property was not constructed in a special manner for their benefit, and that they did not negligently construct or repair the public property (see, Giroux v. Snedecor, 178 A.D.2d 802, 803, 577 N.Y.S.2d 699).


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