Bucalo v. City of New York ( 1993 )

Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered November 12, 1991, which denied defendant Trusthouse Forte Hotels’ motion, pursuant to CPLR 3211 (a) (7) or, alternatively, CPLR 3212, to dismiss the complaint, and order of the same court, entered March 5, 1992, which granted defendant’s motion for reargument but, upon reargument, adhered to its prior determination, unanimously affirmed, with costs.

There are material issues of fact with respect to the control dr special use of the sidewalk where plaintiff slipped and fell. Even absent evidence that defendant hotel repaired the walkway or curb in question, issues of fact exist, which include whether the part of the sidewalk where the accident occurred was constructed or used exclusively to benefit the hotel, to the extent that a duty arose to maintain it in a reasonably safe condition by virtue of a special use or benefit (see, Nickelsburg v City of New York, 263 App Div 625, 626; Balsam v Delma Eng’g Corp., 139 AD2d 292, 298-299, lv denied in part and dismissed in part 73 NY2d 783). Concur—Sullivan, J. P., Milonas, Ellerin and Wallach, JJ.