Rocco v Marder

[*1] Rocco v Marder 2006 NY Slip Op 50934(U) [12 Misc 3d 1156(A)] Decided on January 25, 2006 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 25, 2006
Supreme Court, Richmond County

Lorraine Rocco, Plaintiff,

against

Russell Marder and Linda Marder, Defendants.



10371/03

Judith N. McMahon, J.

This matter arises out of an alleged slip and fall which occurred on July 5, 1995, on the sidewalk in front of 361 Colon Avenue, Staten Island, New York. Defendants Russell Marder and Linda Marder owned the property as tenants by the entirety. However, the judgment of divorce between the defendants entered October 30, 1991 (Lester Sacks, J.S.C.) provided that "Wife shall vacate the marital premises . . ., and that thereafter the Husband shall have sole and exclusive occupancy of the aforesaid premises." ( Movant's Exhibit B). It is undisputed that the wife complied with the judgment of divorce and had vacated the premises more than three years prior to the alleged accident.

The plaintiff brought an initial action against the defendants in 1995. On October 19, 1997, defendant Russell Marder died. Thereafter, the complaint was dismissed as to defendant Linda

ROCCO v. MARDER

Marder following a traverse hearing on the issue of service (Order entered December 27, 2002). Within 120 days, the plaintiff commenced the instant action against the defendants. In an order entered November 24, 2004, the defendant Linda Marder's motion for summary judgment on the affirmative defenses of statute of limitations and failure to state a cause of action was denied, and the plaintiff's cross-motion for leave to serve an amended summons and complaint was granted (Eric N. Vitaliano, J.S.C.).

Defendant Linda Marder now moves for summary judgment on the issue of liability. "An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk when the owner either created the defect or caused it to occur by a special use, or when a statute or ordinance obligates the owner to maintain the sidewalk to maintain the sidewalk and makes the owner liable for injuries caused by a breach of that obligation" (Perriconi v St. John's Prepartory High School, 290 AD2d 546 [2d Dept 2002]; see, Jeanty v Benin, 1 AD3d 566 [2d Dept 2003]; Diaz v Vienti,303 AD2d 713 [2d Dept 2003]). In support of her motion, defendant [*2]demonstrated that she was an out-of-possession owner who retained no control over the sidewalk area. Thus, she can not be responsible for either creating the defective condition or causing it by a special use (see, Beda v City of New York, 4 AD3d 317 [2d Dept 2004]; Schreiber v Goldleing Realty Corp., 251 AD2d 315 [2d Dept 1998]).

Furthermore, contrary to plaintiff's contention, defendant can not be held liable for her alleged violation of Administrative Code of City of New York § 19-129. "In order for a statute,

ROCCO v. MARDER

ordinance, or municipal charter to impose tort liability upon an abutting owner for injuries caused by its negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he will be liable to those who are injured" (Scalici v City of New York, 215 AD2d 744 [2d Dept 1995]; see, Picone v Schlaich, 245 AD2d 555 [2d Dept 1997]). No such language is contained in the subject ordinance.

Accordingly, it is

ORDERED, that defendant Linda Marder's motion for summary judgment is granted and the complaint is dismissed as against her.

E N T E R,

Dated: January 25, 2006

J.S.C.