Ocasio v. City of Middletown , 538 N.Y.S.2d 586 ( 1989 )

Mollen, P. J., and Sullivan, J.,

concur in part and dissent in part and vote to dismiss the appeal from the order and to affirm the judgment, with the following memorandum: The plaintiffs instituted this action to recover damages resulting from Robert Ocasio’s fall on a sidewalk owned by the defendant City of Middletown and abutting the premises owned by the defendant P. J. Reilly-Morse Funeral Home, Inc., at the intersection of Cottage Street and Railroad Avenue. According to the injured plaintiff’s deposition testimony, he broke his ankle when he fell "about a foot down” into a hole created by a missing manhole cover in the sidewalk.

As a general rule, an abutting owner is not liable for the maintenance of a public sidewalk in front of his premises (see, City of Rochester v Campbell, 123 NY 405; Lodato v Town of Oyster Bay, 68 AD2d 904). An exception to this rule exists when "there is some feature in the construction of a sidewalk, not connected with the public use, which confers a special benefit on his property” (Gordon v City of Albany, 278 App Div 233, 235; Smith v City of Coming, 14 AD2d 27, 29; see also, 5B Warren’s Negligence in the New York Courts, at 953-954 [3d ed]). There is no evidence in the record showing that the defendant funeral home, as an abutting landowner, controlled, maintained or derived any special benefit from either the subject manhole or sidewalk. Consequently, the court properly granted the defendant funeral home’s motion for summary judgment dismissing the complaint as against it (see, Keirnan v Thompson, 137 AD2d 957).

The court also properly granted the defendant City of Middletown’s cross motion for summary judgment dismissing the complaint as against it for noncompliance with the prior written notice requirements of City of Middletown Code § 30. Since the accident was allegedly caused by a physical defect in the surface of a sidewalk, i.e., a hole attributable to a missing storm sewer manhole cover, the prior written notice requirement of City of Middletown Code § 30 is applicable (see, Gallo v Town of Hempstead, 124 AD2d 700; Zigman v Town of Hempstead, 120 AD2d 520; cf., Turco v City of Peekskill, 133 AD2d 369; Schare v Incorporated Vil. of E. Rockaway, 95 AD2d 802). In support of its motion, the city proffered evidence that the appropriate officials had not received prior written notice with respect to the claimed defect. The plaintiffs have not submitted any evidence indicating to the contrary. Furthermore, the plaintiffs failed to proffer evidentiary facts sufficient to create bona fide issues regarding the city’s role in creating the defective condition or in any affirmative tortious conduct which would have exempted the plaintiffs from establishing compliance with City of Middletown Code § 30 (Gallo v Town of Hempstead, supra; Zigman v Town of Hempstead, supra; cf., Barrett v City of Buffalo, 96 AD2d 709). In the absence of a triable issue of fact, dismissal of the complaint at this stage of the proceeding was proper.