Randy J. Schaal v City of Utica

Schaal v City of Utica 2004 NY Slip Op 07522 [3 NY3d 727] October 21, 2004 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2004

[*1] Randy J. Schaal, as Trustee in Bankruptcy on Behalf of Nancy Montero and Another, Appellant,
v
City of Utica et al., Respondents, et al., Defendant.

Decided October 21, 2004

Schaal v City of Utica, 6 AD3d 1070, affirmed.

APPEARANCES OF COUNSEL

Gustave J. DeTraglia, Jr., Utica, for appellant.

Linda Sullivan Fatata, Corporation Counsel, Utica (Joseph P. Giruzzi of counsel), for City of Utica, respondent.

Costello, Cooney & Fearon, PLLC, Syracuse (Brendan J. Reagan of counsel), for 200 Genesee Street, Inc. and another, respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division correctly determined that plaintiff's speculative assertions failed to raise an issue of fact with respect to defendant City of Utica's alleged creation of a dangerous sidewalk condition. Similarly, plaintiff adduced no evidence in support of the theory [*2]that defendant hotel had a duty to maintain the public sidewalk adjoining its property because the hotel used the sidewalk for a special purpose (see generally Poirier v City of Schenectady, 85 NY2d 310, 315 [1995]). In light of the completion of discovery in an earlier action involving the same allegations and parties and plaintiff's failure to request additional discovery in this action, summary judgment was not prematurely granted (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026 [1983]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.