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THERE WAS A QUESTION OF FACT WHETHER A DEFENDANT WHICH DID NOT OWN THE AREA WHERE PLANTIFF SLIPPED AND FELL COULD BE LIABLE UNDER THE SPECIAL USE DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was question of fact whether defendant Ayer made a “special use” of the area of the pavement defect where plaintiff fell:

Although the Ayer defendants met their initial burden on their motion by establishing that the defect in the pavement was located on a portion of the alley owned by the Benderson defendants, the Benderson defendants raised an issue of fact in opposition with respect to whether Ayer could nevertheless be found responsible for plaintiff’s injury under application of the special use doctrine … . Specifically, the Benderson defendants’ submissions established that the defect in the pavement was located close to the property line, that an entrance to Ayer’s apartments was near the defect, and that fixtures attached to the building on Ayer’s property encroached over the property line near the defect. Therefore, the Benderson defendants raised an issue of fact as to whether Ayer had the requisite “access to, and control of,” the alley where plaintiff fell to give rise to a duty of care … . Jargiello v Ayer Dev., LLC, 2021 NY Slip Op 04828, Fourth Dept 8-26-21

 

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