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

348
CA 16-01296
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.


CAITLIN WESTON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOSE MARTINEZ, DEFENDANT-RESPONDENT,
AND CIANCIANA PROPERTY MANAGEMENT, LLC,
DEFENDANT-APPELLANT.


GALLO & IACOVANGELO, LLP, ROCHESTER (BRIAN P. RILEY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI ROBB MONAGHAN, ROCHESTER, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered December 17, 2015. The order denied the motion
of defendant Cianciana Property Management, LLC for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint and cross claim against defendant Cianciana Property
Management, LLC are dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the bicycle on which she was
riding collided with a vehicle owned and operated by defendant Jose
Martinez (Martinez). The collision occurred as Martinez was exiting
the driveway of an apartment building owned by Cianciana Property
Management, LLC (defendant). According to plaintiff, her view of
Martinez and his view of her were blocked by a stone fence next to the
sidewalk abutting defendant’s property. Martinez filed a cross claim
against defendant, seeking contribution and indemnification.

     Defendant moved for summary judgment dismissing the complaint and
cross claim against it. We conclude that Supreme Court erred in
denying that motion. Contrary to plaintiff’s contention, defendant
established that it owed no duty to plaintiff, a user of the public
way (see Echorst v Kaim, 288 AD2d 595, 596; see also Clementoni v
Consolidated Rail Corp., 8 NY3d 963, 965; Cook v Suitor, 81 AD3d 1452,
1452-1453). Although plaintiff contends that a duty arose because
defendant made a special use out of the sidewalk by virtue of the fact
that the driveway passed over the sidewalk, we conclude that the
special use doctrine is inapplicable where, as here, there is no
alleged defect in the sidewalk or driveway itself (see Capretto v City
of Buffalo, 124 AD3d 1304, 1306; see generally Kaufman v Silver, 90
                                 -2-                           348
                                                         CA 16-01296

NY2d 204, 207-208). “In the absence of a special feature constructed
in the sidewalk, the special use doctrine will not be applied even if
the defendant makes continual, heavy use of the sidewalk” (Kreindler,
Rodriguez, Beekman and Cook, New York Law of Torts § 12:9 [15 West’s
NY Prac Series August 2016 Update]).

     We thus conclude that defendant established that it owed no duty
of care to plaintiff. “In the absence of duty, there is no breach and
without a breach there is no liability” (Pulka v Edelman, 40 NY2d 781,
782). We therefore reverse the order, grant the motion, and dismiss
the complaint and cross claim against defendant.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
