Opinion
2019–01953 Index No. 56423/16
07-22-2020
Luis DEBORBA, et al., Appellants, v. CITY OF RYE, Defendant, Carol C. Sellon, et al., Respondents.
Raneri, Light & O'Dell, PLLC, White Plains, N.Y. (Kevin D. O'Dell of counsel), for appellants. Thomas K. Moore (Andrea G. Sawyers, Melville, N.Y. [David R. Holland ], of counsel), for respondents.
Raneri, Light & O'Dell, PLLC, White Plains, N.Y. (Kevin D. O'Dell of counsel), for appellants.
Thomas K. Moore (Andrea G. Sawyers, Melville, N.Y. [David R. Holland ], of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated January 28, 2019. The order, insofar as appealed from, granted that branch of the motion of the defendants Carol C. Sellon, Christopher J. Sellon, Karen S. Mulhern, Mark C. Sellon, and Sellon 2012 School Street Family Trust which was for summary judgment dismissing the complaint insofar as asserted against them, and, upon searching the record, awarded the defendant Sellon Management Corporation summary judgment dismissing the amended complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff Luis DeBorba (hereinafter the injured plaintiff) allegedly sustained injuries when he tripped and fell on a sidewalk abutting premises owned by the defendant Sellon 2012 School Street Family Trust, of which the defendants Carol C. Sellon, Christopher J. Sellon, Karen S. Mulhern, and Mark C. Sellon are the trustees (hereinafter collectively the Sellon defendants). The injured plaintiff, and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries against the Sellon defendants and the City of Rye. Insofar as relevant to this appeal, the Sellon defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The plaintiffs opposed the motion and, thereafter, filed an amended complaint naming Sellon Management Corporation (hereinafter SMC), the tenant of the subject premises, as an additional defendant. In an order dated January 28, 2019, the Supreme Court, inter alia, granted that branch of the Sellon defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them, and, upon searching the record, awarded SMC summary judgment dismissing the amended complaint insofar as asserted against it. The plaintiffs appeal.
"Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner" ( Hausser v. Giunta, 88 N.Y.2d 449, 452–453, 646 N.Y.S.2d 490, 669 N.E.2d 470 ). An abutting landowner or tenant will only be liable if it either " ‘created the defect, caused it to occur by a special use, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk’ " ( Cannizzaro v. Simco Mgt. Co., 26 A.D.3d 401, 402, 809 N.Y.S.2d 196, quoting Jeanty v. Benin, 1 A.D.3d 566, 567, 767 N.Y.S.2d 447 ; see Padarat v. New York City Tr. Auth., 175 A.D.3d 700, 703, 107 N.Y.S.3d 389 ). Here, the Sellon defendants demonstrated, prima facie, that they did not violate a statute or ordinance that would impose liability for failing to repair the subject sidewalk (see Finocchiaro v. Town of Islip, 164 A.D.3d 871, 872–873, 79 N.Y.S.3d 919 ; Morelli v. Starbucks Corp., 107 A.D.3d 963, 964, 968 N.Y.S.2d 542 ). Section 167–50(A) of the Code of the City of Rye provides that "[i]t shall be the duty of the Department of Public Works to require the owner of property abutting upon a street to repair or replace any sidewalk in front thereof that is required to be repaired or replaced," and "[w]here the owner of such property shall fail to neglect to repair or replace such sidewalk for five days after notice to do so has been served upon the owner ... the Department of Public Works shall repair or replace such sidewalk, and a statement of 100% of the cost incurred thereby shall be served upon the owner." Section 167–50(B) imposes tort liability upon landowners for injuries resulting "from the failure of any owner or other responsible person to comply with the provisions of this section." The Sellon defendants' submissions in support of their motion, which included the deposition testimony of Mark C. Sellon, who was also a principal of SMC, and an affidavit of the secretary/treasurer of SMC, established, prima facie, that neither the Sellon defendants nor SMC received notice from the Department of Public Works requiring them to perform sidewalk repairs. Accordingly, the Sellon defendants demonstrated, prima facie, that they had no statutory duty to repair the sidewalk (see Castro v. Rodriguez, 176 A.D.3d 1031, 111 N.Y.S.3d 55 ; Gilbert v. City of Rye, 175 A.D.3d 470, 472, 106 N.Y.S.3d 134 ). The Sellon defendants' submissions also demonstrated, prima facie, that neither the Sellon defendants nor SMC created the defective condition that allegedly caused the injured plaintiff's fall (see Stubenhaus v. City of New York, 170 A.D.3d 1064, 1066, 96 N.Y.S.3d 662 ; Gerendash v. City of New York, 163 A.D.3d 633, 635, 81 N.Y.S.3d 154 ).
In opposition, the plaintiffs failed to raise a triable issue of fact. As to the creation of the alleged defect, the plaintiffs' expert concluded, among other things, that an employee of the Sellon defendants and/or SMC created the dangerous condition "over a period of time" by his use of a "hand shovel" to shovel snow from the sidewalk. Contrary to the plaintiffs' contention, the expert's affidavit was speculative and conclusory, and was insufficient to raise a triable issue of fact as to whether the Sellon defendants created the allegedly dangerous condition on the sidewalk (see Gilbert v. City of Rye, 175 A.D.3d at 472–473, 106 N.Y.S.3d 134 ; Bousquet v. Water View Realty Corp., 161 A.D.3d 718, 719–720, 76 N.Y.S.3d 205 ; Dalder v. Incorporated Vil. of Rockville Ctr., 116 A.D.3d 908, 910, 983 N.Y.S.2d 835 ). "At best, the expert's affidavit showed that [the alleged dangerous condition] formed over a course of years as a result of wear and tear and environmental factors, which cannot be deemed an affirmative act of negligence" ( Smith v. Town of Brookhaven, 45 A.D.3d 567, 568, 846 N.Y.S.2d 203 ; see Beiner v. Village of Scarsdale, 149 A.D.3d 679, 681, 51 N.Y.S.3d 578 ; Ferreira v. County of Orange, 34 A.D.3d 724, 725, 825 N.Y.S.2d 122 ; Hyland v. City of New York, 32 A.D.3d 822, 824, 821 N.Y.S.2d 138 ).
Accordingly, we agree with the Supreme Court's determination to grant that branch of the Sellon defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. Moreover, under the circumstances of this case, we also agree with the court's determination to search the record and award SMC summary judgment dismissing the amended complaint insofar as asserted against it (see CPLR 3212[b] ; Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 ; Greene v. Rachlin, 154 A.D.3d 814, 817, 63 N.Y.S.3d 78 ; Pope v. Safety & Quality Plus, Inc., 74 A.D.3d 1040, 1041–1042, 903 N.Y.S.2d 124 ).
CHAMBERS, J.P., COHEN, BRATHWAITE NELSON and IANNACCI, JJ., concur.