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Achkhanian v. Town of Oyster Bay

Appellate Division of the Supreme Court of New York, Second Department
Jun 21, 1999
262 A.D.2d 510 (N.Y. App. Div. 1999)

Opinion

Submitted May 10, 1999

June 21, 1999

In an action to recover damages for personal injuries, etc., the defendant Town of Oyster Bay appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), dated June 18, 1998, as granted that branch of the cross motion of the defendant Roman Catholic Diocese of Rockville Centre which was for summary judgment dismissing the cross claims insofar as asserted against it.

Carole A. Burns Associates, Mineola, N.Y. (James F. Diviney of counsel), for appellant.

Lian, Malapero Prisco, New York, N.Y. (Andrew L. Klauber of counsel), for plaintiffs-respondents.

Mulholland, Minion Roe, Williston Park, N.Y. (John A. Beyrer of counsel), for defendant-respondent.

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff Charles Achkhanian broke his leg after he allegedly stepped into a pothole. In their complaint, the plaintiffs alleged that the defective condition was located on the street, which the defendant Town of Oyster Bay (hereinafter the Town) was obligated to maintain, and, in the alternative, that the defective condition was located on the driveway of Holy Trinity High School, which the defendant Roman Catholic Diocese of Rockville Centre (hereinafter the Diocese) was obligated to maintain.

The evidence presented by the Diocese in support of its cross motion for summary judgment, including the injured plaintiff's deposition testimony, photographs of the accident site, and the observations of a Town employee who investigated the plaintiffs' notice of claim, established prima facie that the accident occurred on a public street. In opposition, there was a failure to present evidence raising a triable issue of fact as to the location of the accident. Moreover, the Supreme Court properly rejected the argument that the high school driveway constituted a "special use" by the Diocese of the abutting public street ( see, Kaufman v. Silver, 90 N.Y.2d 204, 207; Poirier v. City of Schenectady, 85 N.Y.2d 310, 315; Schreiber v. Goldlein Realty Corp., 251 A.D.2d 315; Nguyen v. Brentwood School Dist., 239 A.D.2d 406).

In the absence of evidence sufficient to raise a triable issue of fact as to its ownership, control or special use of the property where the defective condition allegedly existed, the Diocese was entitled to summary judgment dismissing the cross claims insofar as asserted against it ( see, Griffith v. Southbridge Towers, 248 A.D.2d 162; Minott v. City of New York, 230 A.D.2d 719).


Summaries of

Achkhanian v. Town of Oyster Bay

Appellate Division of the Supreme Court of New York, Second Department
Jun 21, 1999
262 A.D.2d 510 (N.Y. App. Div. 1999)
Case details for

Achkhanian v. Town of Oyster Bay

Case Details

Full title:CHARLES ACHKHANIAN, et al., plaintiffs-respondents, v. TOWN OF OYSTER BAY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 21, 1999

Citations

262 A.D.2d 510 (N.Y. App. Div. 1999)
692 N.Y.S.2d 424

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