Moons v. Wade Lupe Construction Co.

menced this personal injury action alleging, among other things, that defendant negligently maintained its property. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint and this Court affirmed ( 24 AD3d 1005 [2005]). The action proceeded to trial on the issue of liability and, at the close of plaintiffs proof, defendant moved for a directed verdict arguing that it did not have a duty to maintain the area in which the pothole was located. Supreme Court reserved decision and defendant presented its case, after which it renewed its motion for a directed verdict. Supreme Court reserved decision and submitted the case to the jury. The jury returned a verdict in favor of defendant and defendant thereafter again renewed its motion for a directed verdict, which Supreme Court denied. Plaintiff appeals, arguing only that the question of defendant’s duty should have been determined by the court as a matter of law.^[1]

We agree that the existence and scope of defendant’s duty is a question of law for the court. Although material issues of fact must sometimes be resolved by a jury before a defendant’s duty can be defined by the court, here the question of duty could have been decided as a matter of law without resort to the jury. The proof at trial established that Cordell Road is maintained by the Town of Colonie, which has a nine-foot paved right-of-way extending beyond the edge of the road leading into the parking lot in front of defendant’s business. The pothole in which plaintiff stepped is not located in the parking lot but, rather, located partially in the roadway and partially in the Town’s right-of-way. “Owners of land abutting public property are not liable for keeping that public property in a safe condition merely by reason of the proximity of their property” (Fitzgerald v Adirondack Tr. Lines, Inc., 23 AD3d 907 , 908 [2005] [citations omitted]; see DiMaio v Pozefsky, 35 AD3d 1136 , 1136-1137 [2006]). Thus, liability for defects in the right-of-way could be imposed on defendant only if it was shown that defendant created the pothole, that a statute or ordinance charged defendant with maintenance of the right-of-way (see Fitzgerald v Adirondack Tr. Lines, Inc., supra at 908 ; Oles v City of Albany, 267 AD2d 571 , 571-572 [1999]), or if the right-of-way was designed or altered to serve defendant’s needs in such a way that defendant derived a unique benefit unrelated to the public use (see Kaufman v Silver, 90 NY2d 204 , 207 [1997]; Harris v FJN Props., LLC, 18 AD3d 1089 , 1089-1090 [2005]; Oles v City of Albany, supra at 571-572 ).