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

86
CA 10-01924
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


JERAD M. ZARNOCH, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JEFFREY J. WILLIAMS, STEVEN J. KLOSEK, AND
VARICK RESTAURANT, INC., DOING BUSINESS
AS THE VARICK BAR AND GRILL,
DEFENDANTS-APPELLANTS.


LEONARD & CUMMINGS, LLP, BINGHAMTON (HUGH B. LEONARD OF COUNSEL), FOR
DEFENDANT-APPELLANT JEFFREY J. WILLIAMS.

GOZIGIAN, WASHBURN & CLINTON, COOPERSTOWN (EDWARD GOZIGIAN OF
COUNSEL), FOR DEFENDANTS-APPELLANTS STEVEN J. KLOSEK AND VARICK
RESTAURANT, INC., DOING BUSINESS AS THE VARICK BAR AND GRILL.

EDWARD C. COSGROVE, BUFFALO, FOR PLAINTIFF-RESPONDENT.


     Appeals from a judgment of the Supreme Court, Oneida County
(Anthony F. Shaheen, J.), entered January 27, 2010 in a personal
injury action. The judgment awarded plaintiff money damages upon a
jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
modified on the law by granting the post-trial motion of defendants
Steven J. Klosek and Varick Restaurant, Inc., doing business as The
Varick Bar and Grill, setting aside the verdict against those
defendants and dismissing the complaint against those defendants and
as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he was struck by a motorcycle operated by
defendant Jeffrey J. Williams, after Williams had consumed alcoholic
beverages at a restaurant owned and operated by defendants Steven J.
Klosek and Varick Restaurant, Inc., doing business as The Varick Bar
and Grill (collectively, Varick defendants). Williams and the Varick
defendants each appeal from a judgment entered upon a jury verdict in
favor of plaintiff. We reject Williams’ contention that Supreme Court
abused its discretion in permitting plaintiff’s expert to testify
regarding the likelihood of plaintiff’s need for future surgery. The
admissibility and scope of expert testimony rests within the sound
discretion of the court (see De Long v County of Erie, 60 NY2d 296,
307). “ ‘[A] witness may testify as an expert if it is shown that he
[or she] is skilled in the profession or field to which the subject
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                                                         CA 10-01924

relates[] and that such skill was acquired from study, experience[] or
observation’ ” (Karasik v Bird, 98 AD2d 359, 362; see Matott v Ward,
48 NY2d 455, 459). Plaintiff established that his medical expert
possessed “the requisite skill, training, education, knowledge or
experience from which it can be assumed that the information imparted
or the opinion rendered is reliable” and that the testimony was in the
acceptable form of an opinion concerning the need for future medical
treatment (Matott, 48 NY2d at 459; see Inzinna v Brinker Rest. Corp.
[appeal No. 2], 302 AD2d 967, 968-969; Wroblewski v National Fuel Gas
Distrib. Corp., 247 AD2d 917, 918).

     We agree with the Varick defendants, however, that the court
erred in denying their post-trial motion to set aside the verdict, and
we therefore modify the judgment accordingly. We conclude that the
court erred in instructing the jury with respect to the special use
doctrine. The special use doctrine creates an exception to the
general rule that the duty to keep public sidewalks in a reasonably
safe condition and repair lies with municipalities when “ ‘permission
[has been] given, by a municipal authority, to [abutting landowners
to] interfere with a street solely for private use and convenience in
no way connected with the public use’ ” (Kaufman v Silver, 90 NY2d
204, 207, quoting Clifford v Dam, 81 NY 52, 56-57). When “the
abutting landowner[s] ‘derive[] a special benefit from that [public
property] unrelated to the public use,’ [they are] ‘required to
maintain’ the used property in a reasonably safe condition to avoid
injury to others” (id., quoting Poirier v City of Schenectady, 85 NY2d
310, 315). A special use is typically characterized by “ ‘the
installation of some object in the sidewalk or street or some variance
in the construction thereof’ ” (Weiskopf v City of New York, 5 AD3d
202, 203, quoting Granville v City of New York, 211 AD2d 195, 197; see
Melamed v Rosefsky, 291 AD2d 602; 1A NY PJI3d 2:111, at 649).

     Here, the accident occurred when Williams attempted to drive his
motorcycle away from The Varick Restaurant after he had parked it on
the sidewalk. There is no indication in the record that the sidewalk
had ever been altered in some way for the exclusive benefit of the
Varick defendants, and plaintiff does not contend that he was injured
by some defect in the structure or integrity of the sidewalk (cf.
Peretich v City of New York, 263 AD2d 410). Further, the record
establishes that the Varick defendants neither directed Williams to
park on the sidewalk nor had the authority to do so (see Vehicle and
Traffic Law § 1202 [a] [1] [b]; see also Pulka v Edelman, 40 NY2d 781,
783, rearg denied 41 NY2d 901). Thus, the Varick defendants had no
duty to maintain, repair, supervise or control the sidewalk with
respect to vehicles parked on it. Plaintiff’s position on the
sidewalk “was no different from that of any other passerby” using the
public sidewalk (Rodriguez v Oak Point Mgt., 87 NY2d 931, 932).

     All concur except FAHEY, J., who dissents in part and votes to
affirm in the following Memorandum: I respectfully dissent in part
and would affirm the judgment inasmuch as I cannot agree with the
majority that Supreme Court erred in instructing the jury with respect
to the special use doctrine.
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                                                         CA 10-01924

     The accident giving rise to this action occurred on the night of
May 5, 2005 while plaintiff was standing on a sidewalk outside two
bars known colloquially as “The Stiefvater” and “The Varick.” The
Varick is owned and operated by defendants Steven J. Klosek and Varick
Restaurant, Inc., doing business as The Varick Bar and Grill
(collectively, Varick defendants). While plaintiff was standing on
the sidewalk, defendant Jeffrey J. Williams exited The Varick and
mounted his motorcycle, which was parked on the sidewalk. Seconds
later, plaintiff was struck by the motorcycle and pinned against the
building.

     The accident caused plaintiff to sustain significant injuries,
including a left tibial shaft fracture, a broken right ankle and a
broken right foot, and plaintiff subsequently underwent four surgeries
related to those injuries. Plaintiff commenced this action seeking
damages for those injuries and, at trial, presented evidence
establishing, inter alia, that motorcycles had been parked in front of
The Varick on prior occasions. Indeed, according to one of
plaintiff’s witnesses, motorcycles were regularly present on the
sidewalk in front of The Varick on Thursdays, and plaintiff’s accident
occurred on a Thursday. The trial testimony also established that The
Varick catered in part to motorcyclists and used the area of the
sidewalk where the accident occurred as a motorcycle parking area.

     During its charge to the jury, the court instructed the jury with
respect to the special use doctrine, i.e., that the Varick defendants,
as the owners of the land abutting the sidewalk, could be subject to
liability to the extent the sidewalk was used for their own special
benefit. The jury returned a verdict in favor of plaintiff and
awarded him damages totaling approximately $850,000. The Varick
defendants subsequently moved to set aside the verdict on, inter alia,
the ground that plaintiff failed to present evidence that would
support a finding of special use. The court denied the post-trial
motion.

      “Generally, ‘an owner of land abutting [a public sidewalk] does
not, solely by reason of being an abutter, owe to the public a duty to
keep the [sidewalk] in a safe condition’ ” (Keenan v Munday, 79 AD3d
1415, 1417). Nevertheless, under the special use doctrine, “where the
neighboring landowner derives a special benefit from that public
property which is unrelated to the public use, the landowner is
required to maintain the property in a reasonably safe condition so as
to avoid injury to others” (id.; see Kaufman v Silver, 90 NY2d 204,
207).

     “A special use has been characterized as involving ‘the
installation of some object in the sidewalk or street or some variance
in the construction thereof’ ” (Weiskopf v City of New York, 5 AD3d
202, 203). The historical roots of the special use doctrine, however,
rest in a desire to authorize the imposition of liability upon the
owner of abutting land for injuries arising out of circumstances where
that landowner interferes “ ‘with a street solely for private use and
convenience in no way connected with the public use’ ” (Kaufman, 90
NY2d at 207, quoting Clifford v Dam, 81 NY 52, 56-57). Indeed, types
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                                                         CA 10-01924

of uses that have qualified as special uses include, inter alia, the
placement on a sidewalk of a newspaper vending machine (see Gerdowsky
v Crain’s N.Y. Bus., 188 AD2d 93, 95), newspaper racks (see Curtis v
City of New York, 179 AD2d 432, lv denied 80 NY2d 753) and outdoor
café seating (see MacLeod v Pete’s Tavern, 87 NY2d 912, 914;
Taubenfeld v Starbucks Corp., 48 AD3d 310, 311, lv denied 10 NY3d
713), as well as the use of a sidewalk as a driveway (see Campos v
Midway Cabinets, Inc., 51 AD3d 843; see also Murnan v Town of
Tonawanda, 34 AD3d 1296). Consequently, I cannot agree with the
majority to the extent that it concludes that the alteration of a
sidewalk is a predicate to the special use of that sidewalk.

     I also respectfully disagree with the majority to the extent that
it concludes that the special use doctrine applies only where an
injury is caused by a defective condition in the sidewalk. At the
core of the special use doctrine is the authorization of liability for
interference with a street or sidewalk solely for private use. The
fact that a dangerous condition is on, but not in, a sidewalk is not
dispositive of the question whether the special use doctrine applies
(see e.g. Montalvo v Western Estates, 240 AD2d 45, 46-48; Gerdowsky,
188 AD2d at 95).

     Finally, I respectfully disagree with the majority’s conclusion
that the court erred in charging the jury on the special use doctrine.
There were several references in the testimony at trial to motorcycles
having been parked on the sidewalk in front of The Varick on prior
occasions. Indeed, plaintiff presented evidence that motorcycles were
regularly present on the sidewalk in front of The Varick on the day of
the week that the accident occurred, and the evidence also established
that The Varick used that part of the sidewalk where the accident
occurred as a parking area for motorcycles. Consequently, in my view,
plaintiff presented evidence that would support a finding of special
use (cf. Warren v Leone, 298 AD2d 980; see generally Kaufman, 90 NY2d
at 207-208), and I would therefore affirm.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
