Citation Numbers: 208 Misc. 1029
Judges: Vecchio
Filed Date: 10/10/1955
Status: Precedential
Modified Date: 1/12/2023
This is a motion pursuant to rule 106 to dismiss the complaint against the defendant Sunset Lumber Company, Inc., upon the ground that it does not state facts sufficient to constitute a cause of action.
The complaint, in this personal injury action, alleges that the individual defendants are owners of property, purchased from defendant Sunset Lumber Company, located on the north side of West Main Street in the village of Ilion and immediately adjacent on the east to land owned and occupied by Sunset Lumber; that, at the time of the purchase, all of the defendants contemplated the- erection of a super market and shopping-center upon the property transferred; that the individual defendants erected the proposed building and also constructed
The negligence of the defendants is alleged in paragraph nine wherein it is stated that they neglectéd to maintain the sidewalk and land between the public way and individual defendants ’ building in a safe condition and carelessly permitted the edge of the sidewaEc to remain projected five to six inches above the level of the surface and in a broken and cracked condition. It is also claimed that “ the defendant ” permitted a tenant of the building to park his automobile upon the public sidewalk at the boundary fine of defendants’ properties com-peEing pedestrians entering the super market to leave the public sidewalk and walk to the north nearer the face of the building.
This court is of the opinion that plaintiffs have failed, by the complaint summarized above, to state facts sufficient to allege a cause of action against Sunset Lumber Company, Inc., or to justify continuance of that party as a defendant in the present action.
Nor do I think any liability may be imposed upon defendant Sunset Lumber Company for its failure, as alleged in the complaint, to construct a sidewalk along the public way on the north side of Main Street. Plaintiff has failed to point out, and this court has not discovered, any case decided in this jurisdiction which imposes upon a landowner an obligation to construct or install a sidewalk in the circumstances here presented. Certainly, there is no basis for concluding that the premises sold to the individual defendants in its undeveloped state was unsafe for the public use for which it was intended. Bather, it was the installation of the concrete walk after the transfer of title, and not the absence thereof, which gave rise to plaintiff’s injury. It is that distinction which makes inapplicable the rule of Junkermann v. Tilyou Realty Co. (213 N. Y. 404).
As to the premises presently owned by the corporate defendant, adjacent to that upon which are located the shopping center and super market, there is nothing in the complaint alleging any actionable negligence by Sunset Lumber Company. Plaintiff’s claim appears to be that the lumber company was under a duty to eliminate the six-inch elevation existing between the concrete sidewalk in front of the individual defendants’ premises and its own property by constructing a sidewalk on its property at a grade equal to that of its neighbors’. There is nothing in the complaint to indicate that the condition of the lumber company’s property, in and of itself, was unsafe. On the contrary,
The cases cited by plaintiff are distinguishable. (Hynes v. New York Central R. R. Co., 231 N. Y. 229; Klepper v. Seymour House Corp., 246 N. Y. 85; Bryan v. Hines, 245 App. Div. 322; Beck v. Carter, 68 N. Y. 283.) Each of those cases involved conditions dangerous in themselves which existed on property of the defendant. They did not present situations, like that now before us, where the premises themselves were safe for public use and the danger, if any, was created solely by alterations in the adjoining property.
Plaintiffs have failed to state a cause of action against the defendant Sunset Lumber Company, Inc. Accordingly, the motion is granted and the complaint, as to the defendant dismissed.
Order accordingly.