Lozano v 979 Third Ave. Assoc., Inc.

[*1] Lozano v 979 Third Ave. Assoc., Inc. 2009 NY Slip Op 51809(U) [24 Misc 3d 144(A)] Decided on August 20, 2009 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570258/09.

Judith Lozano, Plaintiff-Respondent,

against

979 Third Avenue Associates, Inc., Defendant-Appellant-Respondent, -and- Duane Reade, Inc., Defendant-Respondent- Cross-Appellant.

Defendant 979 Third Avenue Associates, Inc. (Third Avenue) appeals from an order of the Civil Court of the City of New York, New York County (Ernest J. Cavallo, J.), dated January 11, 2008, which denied its motion for summary judgment dismissing the complaint. Defendant Duane Reade, Inc. cross-appeals from so much of the aforesaid order as granted the motion of defendant Third Avenue for summary judgment on its claim for conditional contractual indemnification.

Per Curiam.

Order (Ernest J. Cavallo, J.), dated January 11, 2008, reversed, with $10 costs, and the motion of defendant Third Avenue for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint. Cross appeal from the aforesaid order, dismissed, without costs, as academic. "It is well settled that the owner or occupier of land abutting a public sidewalk does not owe a duty to the public, solely arising from the location of the premises, to maintain the sidewalk in a safe condition. Rather, liability arises only if the abutting owner or lessee created the defect or used the sidewalk for a special purpose, such as when an appurtenance was installed for its benefit or at its request, contemplating a purpose different from that of the general public" (Thomas v Triangle Realty Corp., 255 AD2d 153 [1998]). While plaintiff asserts that decorative tile work constitutes a special use of the public sidewalk, there is no evidence that defendant Third Avenue "derived a special benefit' unrelated to the public use or different from that conferred on the public at large [internal citations omitted]" (Vrabel v City of New York, 308 [*2]AD2d 443, 444 [2003]); see also Patterson v City of New York, 1 AD3d 139 [2003]). Nor did plaintiff present any competent evidence of the existence of a significant structural or design defect that was contrary to a specific statutory safety provision
(see Velasquez v Tyler Graphics, Ltd., 214 AD2d 489 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 20, 2009