Butler v East 48th St. Realty LLC

[*1] Butler v East 48th St. Realty LLC 2008 NY Slip Op 51708(U) [20 Misc 3d 1132(A)] Decided on August 11, 2008 Supreme Court, Kings County Kramer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2008
Supreme Court, Kings County

Kenmar Butler, Plaintiff,

against

East 48th St. Realty LLC, Jammins Ent. Complex, LLC, Dan Ben Realty Corp., and Mercury Paint Corporation, Defendants.



30324/06



Plaintiff was represented by Talisman & Delotenz, PC, 409 Fulton St., Brooklyn, NY 11201. Defendant East 48th St. Realty LLC was represented by White & McSpedon, PC, 875 Avenue of the Americas, NY, NY 10001.

Defendant Jammins Ent. Complex, LLC was represented by Ahmuty, Demers & McManus, Esqs., 200 I.U. Willets Rd., Albertson, Ny 11507.

Defendants Dan Ben Realty Corp. and Mercury Paint Corp. were represented by Pillinger Miller Tarallo, LLP, 570 Taxter Rd., Elmsford, NY 10523.

Herbert Kramer, J.

Plaintiff alleges that he sustained injuries when he tripped and fell in a pothole in the roadway after leaving a night club called the Jammins Entertainment Complex, LLC [hereinafter Jammins] premises. The pothole was located on East 48th Street, a public street. It is a dead end street occupied by light industrial businesses. From the photographs submitted by both parties, it appears that the pothole was some forty to fifty feet from the entrance to ths nightclub. Indeed, plaintiff described it as being "far" from the entrance. The nightclub has its own enclosed parking lot for its patrons, but the overflow must find street parking. On the night in question, when the car in which plaintiff was riding turned into East 48th Street, plaintiff claims that someone dressed in black with a "net vest," who he assumed was working for the club, directed the driver to parallel park on the street by backing the car up against a wall next to another car. The club manager testified that no club employees were told to direct cars to park on the street.

Jammins moves for summary judgment dismissing the complaint upon the ground that it did not have a duty to maintain, repair control or manage the public street in which the plaintiff fell and made no special use of that street such that it would be liable to repair any potholes [*2]appearing on the street. East 48th Street Realty moves for summary judgment on its cross claims for contractual indemnification against Jammins.

With respect to Jammins' motion, even when viewing the evidence in a light most favorable to the plaintiff- non-moving party as we must and assuming that club employees directed the traffic entering 48th Street telling them where to park on the street when the lot was full, such evidence does not make out a special use.

" [L]iability 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' . . . The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of the public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others'. Special use cases generally involve the installation of an object in the street or on the sidewalk, such as an oil cap or a runway, for the benefit of a private landowner. The common thread in each of these cases was an installation exclusively for the accommodation of the owner of the premises which he was bound to repair in consideration of the private advantage'.' The special use is a use different from the normal intended use of the public way, and thus, [t]he special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use'." Minott v. City of New York, 230 AD2d 719(2d Dept. 1996). Thus in Minott, the Court held that the defendant store was not liable for a customer's slip and fall on any icy spot in a parking space across the street from the store. The Court held, "The use by [the store's] customer of public parking spaces on a public road is not a special benefit' giving rise to a special use." Id. at 720.

In another case, the Court rejected the argument of a plaintiff who maintained that the operator of a service station whose practice it was to have his customers line up on West 96th Street while they waited to for an available pump constituted a special use of the public street such as to obligate the service station to clear the street of ice. Balsam v. Delma Engineering Corp., 139 AD2d 292(lst Dept. 1988). The Balsam Court opined that "[n]one of the indica of special use are remotely present in this case. Plaintiff does not allege that Service Center benefitted from the 96th Street Roadway in a manner different from that of the general populace [and in so doing] . . . [rejected the plaintiff's argument that the defendant] co-opted the street for its own commercial benefit by causing or encouraging customers to wait for an available pump, but fails to cite any cases in which such a common occurrence as a line of waiting cars on the public thoroughfare outside a car wash, parking lot or other facility open to the public has been held to constitute a special use. The conduct of the customers in stopping their vehicles in the street until one of the [gasoline bays] becomes vacant is a normal use of the street; and from the service station operative's perspective varies only in degree from the ordinary commercial enterprise's utilization of the public street to provide access to its premises for its customers." Id. Accord Schreiber v. Goldlein Realty Corp., 251 AD2d 315(2d Dept. 1998) (where sidewalk parking was available to the public in general special use doctrine not applicable); Nixdorf v. East Islip School District, 276 AD2d 759(2d Dept. 2000)( where plaintiff slipped in hole in the road in front of an elementary school, held that use of public parking spaces on a public road in [*3]front of a school is not a special benefit giving rise to a special use.)

The circumstances at bar, like those in the above cited cases, do not present an occasion for the application of the special use doctrine. Even if we assume that the club's security guards were directing the drivers to park along the sides of East 48th Street, this constitutes no more than the normal use to which the general public was entitled to make of the street. Indeed, as the Balsam Court opined, "To construe the amorphous benefit received by . . . entrepreneur[s such as Jammins] as a special benefit' would effectively allow the special use exception to swallow up the rule exempting abutting landowners from liability for injury on the public ways. It would place on every homeowner and commercial establishment a duty to maintain the abutting public roads whenever it could be shown that they too reap a special benefit from the use of the public streets." Balsam v. Delma Engineering Corp., supra, 139 AD2d at 299.

Accordingly, the defendant Jammins' motion for summary judgment dismissing the complaint is granted and the complaint is dismissed. Under this circumstance, since the injury alleged herein was not caused by any act or omission by the tenant, the defendant East 48th Street's motion for summary judgment on its cross claims for contractual indemnification is denied.

This constitutes the decision and order of the Court.

J.S.C.