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Liability Against Owner Requires Special Use (NY)

August 12, 2020

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<p style="text-align: justify;">In <a href=""><em>Pollard-Leitch v. R &amp; D</em></a><em>., </em>the Appellate Division, Second Department addressed whether the defendants – R &amp; D Utica Realty, Inc. were the owners of the property abutting the sidewalk where the plaintiff tripped and fell.</p>
<p style="text-align: justify;">The Supreme Court denied the defendant’s motion for summary judgment to dismiss the complaint and all cross claims asserted against it which was reversed by the Appellate Division.</p>
<p style="text-align: justify;">Plaintiff allegedly tripped and fell on a public sidewalk next to a fenced-in parking lot owned by R &amp; D Utica Realty, Inc. R&amp;D then moved for summary judgment on the basis that they did not have a duty to maintain the portion of the sidewalk where plaintiff fell as they did not own the abutting property.</p>
<p style="text-align: justify;">The Appellate Division stated that “Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property. The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none of those elements are present, "[generally] a party cannot be held liable for injuries caused by the [dangerous] condition of the property."</p>
<p style="text-align: justify;">R &amp; D was able to establish that they were 1) not the owner of the property abutting the portion of the sidewalk where plaintiff fell, 2) that they did not negligently construct or repair that portion of the sidewalk and 3) cause the alleged condition to occur by some special use of the sidewalk.</p>
<p style="text-align: justify;">As such, the defendants were granted summary judgment dismissing the plaintiff’s complaint.</p>
<p style="text-align: justify;">This decision serves as a reminder that when sued for a defective sidewalk to first consider: did you 1) own, 2) occupy, 3) control or 4) cause the condition by special use the sidewalk? If the answer is no to all four, then you may not have a duty of care to the sidewalk at issue.</p>
<p style="text-align: justify;">Thanks to Corey Morgenstern for his contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.</p>


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