finding that special use doctrine applied where defendant mounted a concrete step on the sidewalk beneath the elevated door of a restaurant
How later courts described this case
- finding that special use doctrine applied where defendant mounted a concrete step on the sidewalk beneath the elevated door of a restaurant
- involving a concrete step mounted on the sidewalk beneath the elevated doorway of a restaurant
Written by the judges who cited it.
The opinion
Wallach, J. (dissenting).
Even if we assume, as does the majority, that the step installed by the abutting owner’s (Lincoln’s) predecessor in title and which may encroach upon the sidewalk a few inches constitutes a "special use,” such a possibility does not, standing alone, expose defendant Lincoln to liability in this case. * Plaintiff, in his examination before trial, testified that he tripped and fell on a sidewalk defect four to five feet away from the step. That defect consisted of a "bump” where the jagged and raised portion of the sidewalk protruded upward four to six inches from the surface where plaintiff approached it.
On this record, plaintiff has not produced a scintilla of evidence, as opposed to pure speculation, that the alleged special use was a proximate or contributing cause of his sudden fall, and thus has failed to establish a cause of action against Lincoln as a matter of law (Noto v Mermaid Rest., 156 AD2d 435 ; Ankenbrand v City of New York, 133 AD2d 798 ). The mere fact that the restaurant and its stepped entryway was his ultimate destination does not suffice (Balsam v Delma Eng’g Corp., 139 AD2d 292 , lv denied 73 NY2d 783 ). This case is to be distinguished from Curtis v City of New York ( 179 AD2d 432 , lv denied 80 NY2d 753 ), where the placement of newspaper racks by the abutting owner "defined the plaintiff’s path and in effect directed him towards the defect in the sidewalk”. No such constraint upon plaintiff’s movement was in operation here.
Nor was plaintiff’s claim against Lincoln advanced by the contribution of his engineer, Samuel Hochstein. This expert never visited the site of the fall, but did look at the photographs used at plaintiff’s deposition. In his one-page affidavit, he opines that "work had been done at the site of the accident since the original installation of the sidewalk at that location and prior to the date of the photographs.”
Lincoln took title to the premises on May 10, 1985, and plaintiff’s fall occurred on July 24, 1988. The records of Lincoln and its managing agent disclosed that it performed no work on the sidewalk during this three-year-and-two-month period of ownership. A search of the records of codefendant City of New York revealed that no work permit had issued for *200 this site. Insofar as it might pertain to Lincoln, Mr. Hochstein’s affidavit is probative of nothing. If negligent "work” of an undefined type had been done by Lincoln’s predecessor in title, that would not impose liability upon Lincoln (Langfelder v City of New York, 271 App Div 309 ; Sciremammana v City of New York, 271 App Div 842 ). In the form presented, Mr. Hochstein’s affidavit does not exclude codefendant City of New York, nor, for that matter, any other entity in the world with sidewalk construction capability.
The mere fact that the crack in the sidewalk leads directly to the step does not raise a triable issue. The doctrine of guilt by association has never been successfully extended to sidewalk cases.
Accordingly, we respectfully dissent. We would reverse the order appealed from and dismiss the action against defendant Lincoln.
Kupferman and Asch, JJ., concur with Tom, J.; Sullivan, J. P., and Wallach, J., dissent in a separate opinion by Wallach, J.
Orders, Supreme Court, New York County, entered February 3, 1993 and December 8, 1993, affirmed, without costs.
Although the motion court and the majority seem to agree that plaintiff’s case against Lincoln "should go to trial on the special use issue”, this controversy presents a pure question of law, since the facts on that aspect of the claim are undisputed.