Betances v. 700 West 176th St. Realty Corp., 672 N.Y.S.2d 881

Betances v. 700 West 176th St. Realty Corp.

672 N.Y.S.2d 881

N.Y. App. Div.

1998

Check Treatment

—Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered May 20, 1997, which, in an action by plaintiff for injuries sustained when she tripped over a hole in the sidewalk abutting premises leased, owned and managed by defendants, granted the respective motions for summary judgment by the lessee and by the owner and manager, unanimously affirmed, without costs.

We agree with the motion court that plaintiff failed to adduce any evidence tending to show that her path was directed toward the hole in the sidewalk because of the clothing rack allegedly placed on the sidewalk by defendant lessee, and that her claim based on a special use of the sidewalk is therefore without merit (compare, Curtis v City of New York, 179 AD2d 432, lv denied 80 NY2d 753, with MacLeod v Pete’s Tavern, 87 NY2d 912). We also agree with the motion court that plaintiff failed to adduce evidence sufficient to raise an issue of fact as to whether defendants ever undertook to repair the alleged hole, and that her claim for negligent repair is therefore without merit (see, Palazzo v City of New Rochelle, 236 AD2d 528, 529; Carbone v Pathrose, 236 AD2d 352). Concur — Rosenberger, J. P., Wallach, Tom and Saxe, JJ.