Friedman v City of New York

[*1] Friedman v City of New York 2009 NY Slip Op 51709(U) [24 Misc 3d 1232(A)] Decided on August 6, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2009
Supreme Court, Kings County

Chaya Friedman, et. al., Plaintiff,

against

City of New York, et. al., Defendant. (s)



49227/01

Robert J. Miller, J.

This action is a perfect example of how a simple case - a slip and fall - can turn into a proverbial "Federal case".

On January 9, 2001, plaintiff, an infant Chaya Friedman ("Friedman"), allegedly fell on a public sidewalk between 426 Brooklyn Avenue and 484 Montgomery Street (a/k/a 420 Brooklyn Avenue) Brooklyn, NY

The accident occurred prior to the passage of New York City Administrative Code § 7-210 (Sidewalk Law) which shifted responsibility (with certain specified exemptions) for maintaining the public sidewalks from the City of New York to the abutting landowner.

Friedman, by her guardians, sued the City of New York (City), Sholom and Sara Bryski (Bryski) and Kingston Heights, Inc. (Kingston), the parties who allegedly owned the property directly abutting the sidewalk where Friedman fell.

This straight forward trip and fall negligence case has been transformed into a case involving 74 additional defendants because Friedman fell on a public sidewalk which crosses the driveway entrance to an alleyway which runs a City block from Brooklyn Avenue to New York Avenue. The backs of numerous businesses and homes on Montgomery Street and Empire Boulevard front the alleyway.

After the deposition of plaintiff and defendants, the Bryski defendants impleaded 74 additional property owners each of whom owned different property whose backs faced the alleyway. Thereafter, plaintiffs filed an amended complaint naming the 74 additional parties as direct defendants.

The Court has before it multiple motions for summary judgment. Seventy one (71) defendants represented by multiple law firms move for summary judgment. For simplicity, the defendants whose backs of property front the alleyway leading from the driveway will be identified as "Alleyway Defendants". Of the 75 Alleyway Defendants, 71 make motions for summary judgment. None of the pro se defendants (Benjamin Gorodetsky, Morris, Terecetal and Ann Sylvester) join in the motions. The City also did not join in the summary judgment motions. [*2]

The theory of the plaintiffs' case against the Alleyway Defendants is " a driveway constitutes a special use... This matter involves a sidewalk defect which is part of the... driveway... defendants have stated that the Department of Sanitation clears out garbage while using the driveway ... defendants clearly get a special use' out of the driveway and a jury may reasonably infer that the sanitation truck which... the defendants benefitted from caused the subject defect".

In support of their summary judgment motions, the Alleyway Defendants argue that they do not own the property abutting the accident, they don't own the alleyway (at most it constitutes an easement) and that the doctrine of special use of the driveway is inapplicable to the Alleyway Defendants since they do not exercise exclusive control or, in fact, any control over the driveway.

The Alleyway Defendants submit numerous affidavits in support of their motions. In summary, the affidavits establish that the alleyway is regularly utilized by residents and non-residents, is utilized by New York City Department of Sanitation (DOS) trucks to pick up garbage for the Alleyway Defendants, utilized by New York City Police Department (NYPD) cars on patrol, and utilized by people as a shortcut between Brooklyn and New York Avenues.

The affidavits establish that other than the small portion of the alleyway abutting their property, none of the Alleyway Defendants maintain, clean or repair the alleyway. There is no evidence that the Alleyway Defendants maintained or repaired the driveway which was the site of the accident.

In response, plaintiffs submit an attorney's affirmation which largely argues that the motions are premature as the moving defendants have not been deposed. Plaintiffs' attorney's affirmation does not dispute the material facts set forth in the moving papers. As an attorney's affirmation, it is insufficient to raise triable issues of fact. (Zuckerman v.City of New York, 49 NY2d 557 [1980]).

Since this action arose prior to the effective date of Sidewalk Law, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks was placed on the municipality and not the abutting landowner. (Hausser v Giunta, 88 NY2d 449 [1996]). However, an exception to this general rule is the "special use" doctrine. Liability will be imposed on the abutting property owner where the sidewalk was constructed in a special manner for the benefit of the abutting owner (Clifford v Dam, 81 NY 52 [1880 ]). A driveway generally constitutes a special use of a public sidewalk (Tedeschi v KMK Realty Corp,. 8 AD3d 658 [2d Dept 2004]).

A key principle underlying the special use doctrine is that liability may be imposed "since the special user has exclusive access to and control of the special use structure or appurtenance (Posner v New York City Transit Authority, 27 AD3d 542 [2d Dept 2006]).

As the Court of Appeals noted in Kaufman v Silver, 90 NY 204 [1997],

Imposition of the duty to repair or maintain a use located

on adjacent property is necessarily premised, however, upon

the existence of the abutting land occupier's access to and

ability to exercise control over the special use structure or

installation. "The doctrine of implied duty [to repair a special

use structure] requires the person who, even with due permission, [*3]

constructs a scuttle hole in the sidewalk in front of his premises, to

use reasonable care for the safety of the public, aslong as it

remains there and is subject to his control". (Citations omitted)

Thus, although the duty to repair runs with the land as long as

the appurtenance is maintained for the benefit of the land,

(Citations omitted) it is the express or implied access to and

control of the special use which gives rise to the

duty. (Citation omitted)

Here, the facts are undisputed that the Alleyway Defendants did not exercise any control over the driveway. Plaintiffs' opposition does not dispute this fact. In fact, it acknowledges the regular use of the alleyway by DOS vehicles.

Where, as here, the driveway in question is essentially an entrance way to a publicly used alleyway, the special use doctrine is not applicable to landowners who abut the alleyway and exercise no control over the driveway.

As such, the motions by the Alleyway Defendants for summary judgment are granted. The Court also searches the record and grants summary judgment to the pro se defendants who while not movants are in the same position as the Alleyway Defendants. (Star v Barillo, 225 AD2d 610 [2d Dept 1996]).

The motion for summary judgment by the abutting property owner, the Bryski defendants, is denied. In light of the undisputed evidence that the Bryski defendants repaired the defect that allegedly cause the accident, there are triable issues for a jury to determine whether the Bryski defendants exercised control over the driveway so as to create an obligation to maintain and repair the driveway . Guzman v Haven Plaza, 69 NY2d 559 [1987]).

Accordingly, the motions for summary judgment are granted and the complaint, third-party complaint and all cross claims are dismissed as against the following defendants:

Jacob Pomerantz, Eva E. Pomerantz, James E. Reid, Mary E. Reid, Gilla Zaltman, Shoshana Zalzman, Shmuel Glick, Rivkah Glick, Gary Susskind, Gitel Susskind, Eliezar Gurevitz

Zisel, Gurevitz, Lamartine Benoit, Denise Benoit, Samuel Palace, Devorah Palace, Bresford Dyer, Dorothy Dryer, Joseph Brook, Zahava Brook, David Schmukler, Zahava Brook, David Schmukler, Miriam Schmukler, Mindy Shain, Shomie Rutman, Raizet Rutman, Yaakov Spritzer, Louis Newman, Shirley Newman, Abraham Barber, Libby Barber, Levy Shapiro, Viviane E. Shapiro, Riva Cohen (As Trustee of Rosa Rivkin Irrevocable Trust), Zelda Gansbourg (As Trustee of Rosa Rivkin Irrevocable Trust) Rachael Blecher (As Trustee of Rosa Rivkin Irrevocable Trust), Ben Zion Karasik, Sara Karasik, Rivka Kessler, Nehemias Kessler, Joseph Unimer, Chaya Unimer, Jacob Goldstein, Seema E. Goldstein, Menachem Heber, Meier Chazanow, Dvorah Chazanow, Dov Kahan, Chaya Kahan, Joseph Labkowski, Sara Gorodetsky, Benjamin Gorodetsky, Lana M. Lewis, Elgeta D. Lewis Wyre, Shlomo Lakein, Miriam Lakein, 526 Montgomery Street Trust Moshe Klein, Chaya M. Klein, Gershon Jacobson, Sylvia Jacobson, Max Berstein, Lillian Bernstein, Yaacov Spritzer, Mendel Hershkop, Nechama Hershkop, Josie Volovik, Sara Volovik, Isak Kogan, Miriam Kogan, Jossef Motchkin, Khaia [*4]Motchkin, Morris A. Sylvester, Tereceta E. Sylvester and Ann Sylvester.

The motion for summary judgment by the Bryski defendants is denied.

In light of the decision and Order, the caption is amended to read as follows:  1;

X

CHAYA FRIEDMAN, an Infant under the age of

14 by her Father and Natural Guardian , JOSEPH

FRIEDMAN and JOSEPH FRIEDMAN, Individually,

Plaintiff,

againstIndex No. 49227/01

CITY OF NEW YORK, KINGSTON HEIGHTS INC.,

SHOLOM BRYSKI and SARAH BRYSKI, JACOB,

Defendant. (s)  1;

X

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

August 6, 2009