PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER AN ALLEGED DEFECT IN THE ROAD WAS CAUSED BY DEFENDANT’S SPECIAL USE OF THE ROAD; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant demonstrated it did not create a dangerous condition in the street by a special use. Plaintiff alleged defendant created the dangerous condition by storing heavy materials in the street. Plaintiff alleged a steel beam fell on his foot from a forklift when the forklift struck a defect in the road (Simmons Avenue):

“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality, and not on the owner or lessee of abutting property, unless the landowner or lessee has either affirmatively created the dangerous condition, voluntarily but negligently made repairs, caused the condition to occur through a special use, or violated a statute or ordinance expressly imposing liability on the landowner or lessee for a failure to maintain the abutting street” … . Defendant met its initial burden on the motion by establishing, as relevant here, that “[it] neither owned nor made special use of [Simmons Avenue], and that [it] had no connection to the condition” that caused the accident … .

From the dissent:

In our view, defendant failed to establish as a matter of law that it did not make special use of Simmons Avenue or affirmatively create the defective condition on Simmons Avenue that allegedly caused plaintiff’s injuries. Beck v City of Niagara Falls, 2022 NY Slip Op 00563, Fourth Dept 1-28-22