Hyperlawhypertext legal database Schaal v. City of Utica 3 N.Y.3d 727

← Cases

Schaal v. City of Utica

3 N.Y.3d 727 Court N.Y. Decision date 2004-10-21 English

Contents

Majority

p. 727
[820 NE2d 276, 786 NYS2d 798]
Randy J. Schaal, as Trustee in Bankruptcy on Behalf of Nancy Montero and Another, Appellant, v City of Utica et al., Respondents, et al., Defendant.
Decided October 21, 2004
p. 728
APPEARANCES OF COUNSEL
Gustave J. DeTraglia, Jr., Utica, for appellant.
Linda Sullivan Fatata, Corporation Counsel, Utica (Joseph P. Giruzzi of counsel), for City of Utica, respondent.
Costello, Cooney & Fearon, PLLC, Syracuse (Brendan J. Reagan of counsel), for 200 Genesee Street, Inc. and another, respondents.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division correctly determined that plaintiffs speculative assertions failed to raise an issue of fact with respect to defendant City of Utica’s alleged creation of a dangerous sidewalk condition. Similarly, plaintiff adduced no evidence in support of the theory that defendant hotel had a duty to maintain the public sidewalk adjoining its property because the hotel used the sidewalk for a special purpose (see generally Poirier v City of Schenectady, 85 NY2d 310 , 315 [1995]). In light of the completion of discovery in an earlier action involving the same allegations and parties and plaintiffs failure to request additional discovery in this action, summary judgment was not prematurely granted (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023 , 1026 [1983]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

Cases cited