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Tortora v. Pearl Foods, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 18, 1994
200 A.D.2d 471 (N.Y. App. Div. 1994)

Summary

finding that a business whose customers formed a line on the sidewalk was not making a special use of the public property

Summary of this case from Williams v. KFC National Management. Co.

Opinion

January 18, 1994

Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).


The Supreme Court erred in denying the defendant's motion for summary judgment since the plaintiff failed to establish the existence of any triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557). There is nothing in the record to suggest that the defendant made any repairs to the public sidewalk where the plaintiff purportedly fell nor did it engage in the negligent removal of snow or ice. In fact, the plaintiff conceded at his deposition that the snow did not cause his fall.

It is well settled that the owner or lessee of land abutting a public sidewalk owes no duty to the public to keep the sidewalk in a safe condition unless the landowner or lessee creates a defective condition in the sidewalk or uses it for a special purpose (D'Ambrosio v. City of New York, 55 N.Y.2d 454; Roark v Hunting, 24 N.Y.2d 470; Nevins v. Great Atl. Pac. Tea Co., 164 A.D.2d 807). The fact that patrons of the defendant's establishment formed a line on the sidewalk while awaiting entrance did not establish such special use (see, Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, lv dismissed in part and denied in part 73 N.Y.2d 783).

Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Rubin, JJ.


Summaries of

Tortora v. Pearl Foods, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 18, 1994
200 A.D.2d 471 (N.Y. App. Div. 1994)

finding that a business whose customers formed a line on the sidewalk was not making a special use of the public property

Summary of this case from Williams v. KFC National Management. Co.

In Tortora v. Pearl Foods (200 A.D.2d 471), we specifically held that the fact that patrons waiting for admission to a business establishment formed a line on the sidewalk blocking passage, did not constitute a special use of the sidewalk.

Summary of this case from MacLeod v. Pete's Tavern, Inc.
Case details for

Tortora v. Pearl Foods, Inc.

Case Details

Full title:VINCENT TORTORA, Respondent, v. PEARL FOODS, INC., Appellant. (And a…

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

Date published: Jan 18, 1994

Citations

200 A.D.2d 471 (N.Y. App. Div. 1994)
606 N.Y.S.2d 235

Citing Cases

MacLeod v. Pete's Tavern, Inc.

Plaintiff, however, submitted evidence in opposition showing that defendants' employees customarily used the…

Williams v. KFC National Management. Co.

Significantly, New York courts have repeatedly refused to find a special use even when abutting landowners…