SOTO v. Tully Construction Company, Inc., et al., Appellants.

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

Janice SOTO, etc., et al., Plaintiffs-Respondents, v. CITY OF NEW YORK, et al., Defendants-Respondents, Tully Construction Company, Inc., et al., Appellants.

Decided: November 24, 1997

Before O'BRIEN, J.P., and THOMPSON, SULLIVAN and McGINITY, JJ. Barron McDonald Carroll & Cohen (Kenneth Mauro, Great Neck, of counsel), for appellant Tully Construction Company, Inc. Newman Fitch Lane Altheim Myers, P.C., New York City (Jan K. Myers and Laura M. Mattera, of counsel), for appellant Lehrer McGovern Bovis, Inc. Murphy & Higgins, L.L.P., New York City (Robert B. Gibson and Jozef K. Goscilo, of counsel), for appellant Catholic Charities, Diocese of Brooklyn. Mirman, Markovits & Landau, P.C., New York City (Ephrem Wertenteil, of counsel), for plaintiffs-respondents. Jeffrey D. Friedlander, Acting Corporation Counsel, New York City (Kristin M. Helmers and Alan G. Krams, of counsel), for defendant-respondent City of New York.

In an action, inter alia, to recover damages for personal injuries, etc., the defendants Tully Construction Company, Inc., Lehrer McGovern Bovis, Inc., and Catholic Charities, Diocese of Brooklyn, separately appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated September 17, 1996, which denied their separate motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motions are granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The infant plaintiff commenced this action to recover damages for injuries she allegedly suffered when she fell into a trench on a public sidewalk adjacent to a private building which was under construction.   The Supreme Court denied the respective motions of the appellants Tully Construction Company, Inc. (hereinafter Tully), Lehrer McGovern Bovis, Inc. (hereinafter LMB), and Catholic Charities, Diocese of Brooklyn (hereinafter Catholic Charities) for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.   We now reverse.

 It is well settled that “liability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property * * * Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property” (Minott v. City of New York, 230 A.D.2d 719, 720, 645 N.Y.S.2d 879, quoting Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 578 N.Y.S.2d 724;  see also, James v. Stark, 183 A.D.2d 873, 584 N.Y.S.2d 137;  Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 532 N.Y.S.2d 105).   Here, in support of its motion for summary judgment Tully proffered its daily work reports and the deposition testimony of its assistant supervisor, which together established that it did not perform any work at the site of the infant plaintiff's alleged injury (see, Abbenante v. Larry E. Tyree Co., Inc., 228 A.D.2d 529, 644 N.Y.S.2d 780;  Hovi v. City of New York, 226 A.D.2d 430, 640 N.Y.S.2d 782).   Similarly, in support of their respective motions for summary judgment, LMB and Catholic Charities both demonstrated that they neither created the defect in, nor exercised any control or supervision over the public sidewalk abutting the private property, nor did they make special use of the excavation (see, Minott v. City of New York, supra;  Hovi v. City of New York, supra;  Giordano v. Seeyle, Stevenson & Knight, 216 A.D.2d 439, 628 N.Y.S.2d 373;  Libby v. Waldbaum's Inc., 213 A.D.2d 457, 624 N.Y.S.2d 890;  Bykofsky v. Waldbaum's Supermarkets, 210 A.D.2d 280, 619 N.Y.S.2d 760;  Herzfeld v. Incorporated Vil. of Cedarhurst, 171 A.D.2d 647, 567 N.Y.S.2d 130).   Accordingly, inasmuch as Tully, LMB, and Catholic Charities established their entitlement to judgment as a matter of law and the plaintiffs failed to refute their showing by proffering evidence demonstrating a triable issue of fact, summary judgment dismissing the complaint and all cross claims insofar as asserted against the appellants should have been granted (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Hovi v. City of New York, supra).

The parties' remaining contentions are either without merit or, in light of the foregoing determination.

MEMORANDUM BY THE COURT.

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