Petty v. Dumont

Freedman and Abdus-Salaam, JJ.,

dissent in a memorandum by Abdus-Salaam, J., as follows: I agree with the majority that plaintiffs motion for partial summary judgment on the issue of liability should have been granted against defendant Dumont and the City defendants. However, I do not believe the special use doctrine applies here to impose a duty on Con Edison to maintain the City street in a reasonably safe condition. As was explained by the Court of Appeals in Kaufman v Silver (90 NY2d 204, 207 [1997]), “Inherent in the doctrine of special use is the principle that the duty to repair and maintain the special structure or instrumentality is imposed upon the adjoining landowner or occupier because the appurtenance was installed at their behest or for their benefit.” There is no evidence, or any claim by plaintiffs, that Con Edison requested placement of the barrier in front of its facility for its accommodation. Rather, the City made the decision, after the September 11th attack, to install the barrier to protect Con Edison’s Control Center, which monitors the delivery of power and its operation in all five *471boroughs of the City. The barriers were for the benefit of the citizens of New York City, not for the exclusive benefit of Con Edison, and any incidental benefit that Con Edison may have gained from the barrier creating an essentially private entry lane to the facility where there had previously been a public parking lane is not sufficient to constitute a special use (see e.g. Guadagno v City of Niagara Falls, 38 AD3d 1310 [2007] [defendant’s conduct in driving across the portion of the sidewalk that crosses her driveway was not a special use of the sidewalk]; Montalvo v Heege, 301 AD2d 427 [2003] [existence of a single utility line to defendant’s house from utility pole in front of house does not alone support a finding of a special use of sidewalk where pole was located]; Roselli y City of New York, 201 AD2d 417, 418 [1994] [metal sidewalk grate covering a transformer vault that provided electrical service to the street, including defendant’s premises, did not create a special use of sidewalk where the vault and grate “were clearly not installed or maintained exclusively for the accommodation of the owner of the abutting premises”]).

This Court noted in Balsam v Delma Eng’g Corp. (139 AD2d 292, 300 [1988], lv dismissed and denied 73 NY2d 783 [1988]) that “the question of imposition of a duty is one of policy and common sense, not technicalities.” Under these circumstances, where there is no claim that the barrier was installed at the behest or for the benefit of Con Edison, and it is evident that the City made the decision to install it to protect the Energy Control Center from a terrorist attack, the special use doctrine is not applicable. Accordingly, Con Edison had no duty to maintain the street in a reasonably safe condition.