Kearns v. Cedar Cove Dev. Corp.

Summary

The New York Appellate Division, Second Department, reversed an order granting summary judgment to an abutting property owner in a sidewalk-injury action. The court held that the defendant failed to establish entitlement to judgment as a matter of law because the applicable town code did not expressly impose tort liability and triable issues remained as to whether the defendant created the alleged sidewalk defect.

Holdings

1. An abutting landowner is liable for a pedestrian's injury from a public-sidewalk defect only if the owner created the condition, caused the defect through a special use, or is subject to a statute or ordinance that both imposes a maintenance obligation and expressly makes the owner liable in tort for breach of that obligation.
2. Section 181-11, which requires an abutting landowner to keep a sidewalk in good and safe repair, does not expressly impose tort liability for breach of that maintenance duty.
3. The defendant was not entitled to summary judgment because, although it showed that it did not own the sidewalk, it failed to eliminate all triable issues of fact as to whether it created the alleged dangerous condition.

Questions Presented

1. Whether the abutting landowner was entitled to summary judgment on the plaintiffs' sidewalk-injury claims because it did not own the public sidewalk.
2. Whether the Town of Hempstead ordinance imposed tort liability on the abutting landowner for failure to maintain the sidewalk.
3. Whether the defendant established prima facie entitlement to summary judgment by eliminating all triable issues of fact as to whether it created the dangerous sidewalk condition.

Disposition

reversed