        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1236
CA 13-02090
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND VALENTINO,


SUSAN CAPRETTO, PLAINTIFF-RESPONDENT-APPELLANT,

                     V                               MEMORANDUM AND ORDER

CITY OF BUFFALO, SENECA ONE REALTY LLC, ALLPRO
PARKING, LLC, DEFENDANTS-RESPONDENTS,
SKYDECK CORPORATION, BISON BASEBALL, INC., RICH
PRODUCTS CORPORATION AND RICH ENTERTAINMENT GROUP,
DEFENDANTS-APPELLANTS-RESPONDENTS.


FELDMAN KIEFFER, LLP, BUFFALO (CHRISTOPHER E. WILKINS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF
COUNSEL), FOR DEFENDANT-RESPONDENT CITY OF BUFFALO.

WALSH, ROBERTS & GRACE, BUFFALO (ROBERT P. GOODWIN OF COUNSEL), FOR
DEFENDANT-RESPONDENT SENECA ONE REALTY LLC.

LAW OFFICE OF JOHN WALLACE, ROCHESTER (GARY J. O’DONNELL OF COUNSEL),
FOR DEFENDANT-RESPONDENT ALLPRO PARKING, LLC.


     Appeals from an order of the Supreme Court, Erie County (Paula L.
Feroleto, J.), entered August 22, 2013. The order granted the motion
of defendant Seneca One Realty LLC, and the cross motions of
defendants Allpro Parking and City of Buffalo for summary judgment
dismissing the amended complaint and cross claims against them, and
granted in part the motion of defendants-appellants-respondents for
summary judgment.

     It is hereby ORDERED that said appeal by defendants Skydeck
Corporation, Bison Baseball, Inc., Rich Products Corporation and Rich
Entertainment Group from the order insofar as it granted the motion
and cross motion of defendants Seneca One Realty LLC and Allpro
Parking, LLC is unanimously dismissed, and the order is modified on
the law by denying those parts of that motion and cross motion to the
extent that they sought dismissal of plaintiff’s claims based on The
Charter of the City of Buffalo § 413-50 (A) and reinstating those
claims, and as modified the order is affirmed without costs.

     Memorandum:   Plaintiff commenced this action seeking damages for
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                                                         CA 13-02090

injuries she sustained when she tripped and fell as a result of broken
concrete located in the driveway portion of a sidewalk. For purposes
of this appeal, no one has disputed that the large area of broken
concrete constituted a dangerous and “long-standing condition.” The
issue on this appeal is which party had a duty to correct that
condition.

     Defendant Seneca One Realty LLC (Seneca One) owned the property
abutting the sidewalk, and contracted with defendant Allpro Parking,
LLC (Allpro) to “service and operate” the parking garage located on
Seneca One’s property. Immediately adjacent to Seneca One’s property
is property owned by defendant City of Buffalo (City), which the City
leased to defendant Bison Baseball, Inc. (Bison Baseball). Situated
on the property leased to Bison Baseball is, inter alia, the driveway
at issue on this appeal, a baseball stadium and an outdoor, surface
parking lot. Bison Baseball and defendant Rich Entertainment Group
contracted with defendant Skydeck Corporation (Skydeck) to manage and
operate that surface parking lot. Rich Entertainment Group is an
assumed name used by defendant Rich Products Corporation to conduct
business in New York.

     Following discovery, Seneca One moved and Allpro cross-moved for
summary judgment dismissing the amended complaint and all cross claims
against them. Bison Baseball, Skydeck, Rich Entertainment Group and
Rich Products Corporation (collectively, Bison defendants) moved and
the City cross-moved for summary judgment dismissing the amended
complaint and all cross claims against them. Plaintiff opposed the
motions of Seneca One and the Bison defendants, as well as the cross
motion of Allpro. The Bison defendants opposed the cross motion of
the City. Supreme Court granted the motion of Seneca One and the
cross motions of Allpro and the City in their entirety, and granted,
in part, the motion of the Bison defendants. The Bison defendants and
plaintiff appeal from that order.

     As a preliminary matter we note that, inasmuch as the Bison
defendants did not oppose the motion of Seneca One or the cross motion
of Allpro, “they do not have standing as aggrieved parties to appeal”
that part of the order granting that motion and cross motion (Whiteman
v Yeshiva & Mesivta Torah Temimah, 255 AD2d 378, 379; see CPLR 5511;
Darras v Romans, 85 AD3d 710, 711). We thus dismiss that part of the
Bison defendants’ appeal seeking to appeal from so much of the order
as granted the motion of Seneca One and the cross motion of Allpro,
and we do not address on the merits the Bison defendants’ contention
that the court erred in granting summary judgment to those parties.

     The Bison defendants contend that the court erred in denying
their motion for summary judgment with respect to the negligence
claims asserted against them. We reject that contention. “Generally,
liability for injuries sustained as a result of negligent maintenance
of or the existence of dangerous and defective conditions to public
sidewalks is placed on the municipality and not the abutting landowner
. . . There are, however, circumstances under which this general rule
is inapplicable and the abutting landowner will be held liable.
Liability to abutting landowners will generally be imposed where the
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                                                         CA 13-02090

sidewalk was constructed in a special manner for the benefit of the
abutting owner . . . , where the abutting owner affirmatively caused
the defect . . . , where the abutting landowner negligently
constructed or repaired the sidewalk . . . and where a local ordinance
or statute specifically charges an abutting landowner with a duty to
maintain and repair the sidewalks and imposes liability for injuries
resulting from the breach of that duty” (Hausser v Giunta, 88 NY2d
449, 452-453; see Guadagno v City of Niagara Falls, 38 AD3d 1310,
1311; Rader v Walton, 21 AD3d 1409, 1410). Photographs in the record
establish that the dangerous condition is in that portion of the
sidewalk that abuts property owned by Seneca One, but it is also
located in the apron of the driveway that provides access to the
property leased by the Bison defendants.

     “Where a sidewalk is adjacent to but not part of the area used as
a driveway, the plaintiff bears the burden of proof on a motion for
summary judgment of showing that the special use of the sidewalk
contributed to the defect . . . However, if the defect is in the
portion of the sidewalk used as a driveway, the abutting landowner, on
a motion for summary judgment, bears the burden of establishing that
he or she did nothing to either create the defective condition or
cause the condition through the special use of the property as a
driveway” (Adorno v Carty, 23 AD3d 590, 591 [internal quotation marks
omitted]; see Campos v Midway Cabinets, Inc., 51 AD3d 843, 844; Murnan
v Town of Tonawanda, 34 AD3d 1296, 1296-1297). The same principle
applies to a commercial tenant of property where the driveway
constitutes a special use by the tenant (see Tedeschi v KMK Realty
Corp., 8 AD3d 658, 659; Pantaleon v Lorimer Mgt. Corp., 270 AD2d 324,
324; Infante v City of New York, 258 AD2d 333, 334).

     While the area of the dangerous condition is in a City right-of-
way that falls within the extended lot line boundaries of the property
owned by Seneca One, we conclude that the Bison defendants, as lessors
of the “adjacent property,” may nevertheless still be liable if there
is evidence that they had “access to and ability to exercise control
over the special use [driveway]” (Kaufman v Silver, 90 NY2d 204, 207).
We conclude that the Bison defendants failed to establish as a matter
of law that they lacked access to and the ability to control that
special use driveway (cf. id. at 208) and, further, failed to
establish as a matter of law “that they did not affirmatively create
the defect by any alleged special use of the sidewalk as a driveway”
(Schroeck v Gies, 110 AD3d 1497, 1498). Indeed, based on the evidence
submitted by the Bison defendants in support of their motion, it is
reasonable to conclude that the “driveway apron was constructed and
exclusively used for the benefit of [the Bison defendants’ leased]
property” (Keenan v Munday, 79 AD3d 1415, 1418; cf. Guadagno, 38 AD3d
at 1311). The only places that could be accessed by the driveway were
the stadium and the surface parking lot, both of which were located on
the property leased by Bison Baseball. We thus conclude that the
court properly denied their motion seeking to dismiss the negligence
claims asserted against the Bison defendants insofar as those claims
were based on their special use of the driveway (see e.g. Campos, 51
AD3d at 844; Adorno, 23 AD3d at 591; Katz v City of New York, 18 AD3d
818, 819; cf. Schroeck, 110 AD3d at 1498).
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                                                         CA 13-02090

     Even assuming, arguendo, that the Bison defendants met their
initial burden, we conclude that plaintiff raised triable issues of
fact whether the Bison defendants created or caused the dangerous
condition through their special use of the driveway portion of the
sidewalk (see generally Zuckerman v City of New York, 49 NY2d 557,
562). Contrary to the Bison defendants’ contention, the affidavit
from plaintiff’s expert was neither conclusory nor speculative. We
address that contention on the merits even though it was raised for
the first time on appeal because it involves “question[s] of law
appearing on the face of the record . . . [that] could not have been
avoided by [plaintiff] if brought to [her] attention in a timely
manner” (Oram v Capone, 206 AD2d 839, 840; see Rew v County of
Niagara, 115 AD3d 1316, 1317). In our view, the plaintiff’s expert
affidavit establishes that “the weight of traffic on the driveway
could have been a concurrent cause of the defect, [and thus] the
motion for summary judgment [was properly] denied” (Adorno, 23 AD3d at
591; see Tate v Freeport Union Sch. Dist., 7 AD3d 695, 695-696; see
also Keenan, 79 AD3d at 1418).

     The Bison defendants contend that plaintiff improperly raised the
theory of special use for the first time in opposition to their motion
for summary judgment (see generally DiFabio v Jordan, 113 AD3d 1109,
1110-1111; McGrath v Bruce Bldrs., Inc., 38 AD3d 1278, 1279). We
reject that contention. Plaintiff specifically alleged that the Bison
defendants owned, used or possessed the real property upon which the
dangerous condition was located. She also alleged, inter alia, that
the Bison defendants caused or created the dangerous condition. While
there is a legal distinction between normal use and special use (see
Minott v City of New York, 230 AD2d 719, 720; see also Loiaconi v
Village of Tarrytown, 36 AD3d 864, 865), plaintiff’s allegations that
defendants created the defect through their use of the driveway
portion of the sidewalk area are sufficient, “under the liberal
pleading requirements of the CPLR,” to support plaintiff’s theory of
recovery against the Bison defendants (Cole v City of Albany, 80 AD2d
656, 656).

     With respect to Seneca One and Allpro, however, we conclude that
the court properly dismissed the common-law negligence claims against
them but erred in dismissing those claims against them that were based
on The Charter of the City of Buffalo (Charter) § 413-50 (A). We
therefore modify the order by denying those parts of the motion of
Seneca One and cross motion of Allpro that sought dismissal of
plaintiff’s claims based on Charter § 413-50 (A) and reinstating those
claims.

     As noted above, abutting landowners, such as Seneca One, are not
liable “for injuries sustained as a result of negligent maintenance of
or the existence of dangerous and defective conditions to public
sidewalks” unless they had a special use of the sidewalk, they
affirmatively caused the defect, they negligently constructed or
repaired the sidewalk, or “a local ordinance or statute specifically
charges [them] with a duty to maintain and repair the sidewalks and
imposes liability for injuries resulting from the breach of that duty”
(Hausser, 88 NY2d at 452-453; see Guadagno, 38 AD3d at 1311; Rader, 21
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                                                         CA 13-02090

AD3d at 1410). Contrary to plaintiff’s contention, Seneca One and
Allpro established that they did not have any special use of the
driveway portion of the sidewalk, did not create the dangerous
condition, and did not negligently construct or repair the sidewalk,
and plaintiff failed to raise a triable issue of fact in opposition
thereto (see generally Minott, 230 AD2d at 720). The mere fact that
Allpro employees may, on prior occasions, have barricaded the area of
the dangerous condition did not create a duty of care. “[G]ratuitous
conduct may give rise to liability only when the defendant’s
affirmative action adversely affected the plaintiff and the defendant
failed to act reasonably” (Gordon v Muchnick, 180 AD2d 715, 715).
That requires a showing that the plaintiff “relied to his [or her]
detriment upon the defendant’s gratuitous conduct” (McIntosh v
Moscrip, 138 AD2d 781, 783). Here, Allpro established that the
barricades were not up on the day of plaintiff’s fall and that
plaintiff did not rely to her detriment on Allpro’s past voluntary act
of sectioning off the area, and plaintiff failed to raise a triable
issue of fact (Zuckerman, 49 NY2d at 562). Inasmuch as we have
concluded that Seneca One and Allpro did not have a common-law duty to
maintain the sidewalk, we do not address their remaining contentions
supporting the dismissal of plaintiff’s common-law negligence claims.

     Seneca One and Allpro failed, however, to establish their
entitlement to summary judgment on the plaintiff’s claims based on
Charter § 413-50 (A). That ordinance specifically charges “every
owner or occupant of any premises abutting any public street” with the
duty to maintain and repair the sidewalk, and it imposes liability for
injuries resulting from any breach of that duty (id.; see Smalley v
Bemben, 12 NY3d 751, 752). The Charter defines a sidewalk as both
“[t]hat portion of a street outside of the roadway used or set aside
for the use of pedestrians” (id. § 137-1) and “a public paved pathway
at grade, for pedestrians which extends all along block frontage” (id.
§ 103-2). Inasmuch as block frontage is defined as “[a]ll the
property fronting on one side of a street between intersecting or
intercepting streets or between a street and right-of-way, waterway,
end of dead-end street or City boundary, measured along the street
line” (id. § 511-4), we conclude that the driveway apron where
plaintiff fell was on a sidewalk as that term is defined by the
Charter.

     We further conclude that the area of plaintiff’s fall was within
the extended real property boundary line or lot line of the property
owned by Seneca One (see Charter § 293-2; § 511-4). The Charter
defines an occupant as “[a]ny person who owns, controls, resides,
rents or otherwise occupies real property or premises” (id. § 216-66).
Inasmuch as Allpro, pursuant to its maintenance agreement with Seneca
One, controls the real property, Allpro may be deemed an occupier of
that property. We thus conclude that both Seneca One and Allpro, as
the abutting owner and occupant, respectively, had a duty under the
Charter to maintain and repair the area where the dangerous condition
was located, even though the dangerous condition is situated on the
driveway portion of the sidewalk.

     We reject the contentions of Seneca One and Allpro that the Bison
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                                                         CA 13-02090

defendants were required to maintain the area under Charter § 307-39.
That section requires operators of parking lots to keep the sidewalks
surrounding the premises in a safe condition, and it includes “proper
maintenance of that portion of the sidewalk fronting the public way
between the curbline and the property line” (id.). Reliance on that
section presupposes, however, that the area of plaintiff’s fall was
within the “property line” of the property leased by the Bison
defendants. It was not.

     We agree with the Bison defendants, however, that the court
properly dismissed the plaintiff’s claims based on the Charter insofar
as they were asserted against the Bison defendants. The property
leased by them did not “abut[ ]” the sidewalk where the dangerous
condition was located (id. § 413-50 [A]). While the property leased
by the Bison defendants was adjacent to or adjoined the property owned
by Seneca One, liability under section 413-50 (A) is limited to owners
and occupiers of the property that abuts the public sidewalk.

     The Bison defendants finally contend that the court erred in
dismissing their cross claims for contribution and indemnification
against the City. We reject that contention. Plaintiff did not
oppose the City’s motion for summary judgment, and the court dismissed
the amended complaint insofar as it was asserted against the City. It
is well settled “that the existence of some form of tort liability is
a prerequisite to application of [CPLR 1401]” (Board of Educ. of
Hudson City Sch. Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d
21, 28; see Arell’s Fine Jewelers v Honeywell, Inc., 170 AD2d 1013,
1014). Inasmuch as the amended complaint against the City was
dismissed, the Bison defendants “may not properly seek contribution
from the [City]” (Aziz v Village of Great Neck Plaza, 239 AD2d 452,
452; see Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633-634;
Powell v Gates-Chili Cent. Sch. Dist., 50 AD2d 1079, 1080).

     With respect to the Bison defendants’ cross claim for contractual
indemnification, we agree with the City that the cross claim was
properly dismissed. It is well established that, “[w]hen a party is
under no legal duty to indemnify, a contract assuming that obligation
must be strictly construed to avoid reading into it a duty which the
parties did not intend to be assumed . . . The promise should not be
found unless it can be clearly implied from the language and purpose
of the entire agreement and the surrounding facts and circumstances”
(Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492). The only
provision in the contract documents, i.e., the Prime Lease between the
City and Bison Baseball, their second sublease and their amendment to
the sublease, that would arguably apply is the section requiring the
City to indemnify Bison Baseball from “any act or omission by the
indemnifying party or its employees, agents or other persons under the
indemnifying party’s control or supervision.” In our view, the acts
or omissions at issue are acts or omissions regarding the property
covered by the lease. It is undisputed that the area of the dangerous
condition was within a right-of-way excepted from the lease definition
of “demised premises.” The Bison defendants contend, however, that if
they are deemed to have a special use of that area, then that area was
“subject to” the Prime Lease and thus encompassed by the maintenance
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                                                         CA 13-02090

and repair provisions of the lease. We reject that strained
interpretation of the contract documents (see generally Village of
Hamburg v American Ref-Fuel Co. of Niagara, 284 AD2d 85, 88, lv denied
97 NY2d 603). Inasmuch as the City was already required to maintain
the driveway portion of the sidewalk as part of “its continuing duty
to maintain its public rights-of-way in a reasonably safe condition”
(Sniper v City of Syracuse, 139 AD2d 93, 96), we conclude the only
areas “subject to” the Prime Lease were those areas specifically
leased to the Bison defendants in the Prime Lease and the subsequent
subleases.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
