It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material dog bite issues of fact.
In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-movant. “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist”. “Liability for a dangerous or defective condition is 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”.
Generally, liability for injury sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner. A landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner’s property unless the landowner caused the defective condition through negligent construction or repair, or as a result of some special use, or if a statute imposes the obligation to maintain the sidewalk on the abutting property owner.
“The principle of special use,’ to the extent applicable here, imposes an obligation upon an entity to maintain a part of the public way in a reasonably safe condition when that part is under its control and is used for its own benefit. “Plaintiff has not alleged either in her complaint, bill of particulars or deposition testimony that the defendant had exclusive control over the gas main or that he used it for his own benefit. Maria Valera’s deposition establishes that the defendant did not make special use of the gas main access point on the sidewalk.
NYCRR §7-210(a) states that “it shall be the duty of the owner of real property abutting any sidewalk to maintain such sidewalk in a reasonably safe condition.” NYCRR §7-210(b) states “the owner of real property abutting any sidewalk shall be liable for any injury to property personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.” NYCRR §7-210 “imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition.” NYCRR §7-210(c) provides a liability exception for one, two or three family residential real property that is in whole or in part, owner occupied, and used exclusively for residential purposes.
This is an action to recover damages for personal injury sustained by the plaintiff when she tripped and fell on a defect in the public sidewalk adjoining the defendant’s property. It is undisputed that plaintiff is claiming that the defendant negligently maintained the sidewalk but is not claiming that the defendant caused or created the dangerous condition.
The uncontroverted deposition testimony of defendant’s witness, establishes the following facts. Defendant is the landlord of the subject property, an eight-family apartment house, and she is his employee. Since 2005, she has resided in an apartment in the building and has been responsible for cleaning and mopping the common areas. The property is heated by gas. She was shown a photograph depicting the dangerous condition as identified by the plaintiff in her own deposition. She described the condition as a hole that had been there since she started working there. She further stated that there is a cover or cap that the neighborhood children keep removing.