Opinion
2014-02-18
Anna TERILLI, Plaintiff–Appellant, v. Nicholas PELUSO, et al., Defendants–Respondents.
Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Law Office of James Toomey, New York (Evy L. Kazansky of counsel), for respondents.
Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Law Office of James Toomey, New York (Evy L. Kazansky of counsel), for respondents.
SWEENY, J.P., RENWICK, MOSKOWITZ, RICHTER, GISCHE, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 21, 2013, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Dismissal of the complaint was proper in this action where plaintiff was injured when, while walking on the sidewalk in front of defendants' property, her foot became caught in a hole and she fell to the ground. Defendants showed that their property abutting the sidewalk where plaintiff fell was a single-family, owner-occupied residence, exempt from Administrative Code of City of N.Y. § 7–210, and thus, they had no duty to maintain or repair the flagstone on which plaintiff fell. Nor did that portion of the sidewalk on which plaintiff fell constitute a special use to defendants, since defendants did not derive any exclusive benefit of the use of the sidewalk, unrelated to public use ( see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298–299, 532 N.Y.S.2d 105 [1st Dept.1988],lv. dismissed in part, denied in part73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671 [1988] ). That defendants replaced other flagstones on the sidewalk did not give rise to a duty to repair the entire sidewalk, or the flagstone where plaintiff fell.