In Montalbano v 136 W. 80 St., the plaintiff fell on a raised sidewalk
flag and sued the owners of the two adjacent properties because it was unclear
who was responsible for that area of the sidewalk where he fell. Initially,
Callanan thought he owned that area of the sidewalk because on two prior
occasions he had replaced the sidewalk in front of his property, including the
elevated flag that caused the plaintiff to fall. Also, Consolidated Edison had
installed a gas line for Callanan’s building and left an oil cap in the flag.
However, a survey revealed that the sidewalk flag actually abutted Owners
Corp.’s property. As such, the Appellate Division found that Callanan was
entitled to summary judgment. The Appellate Division rejected Owners Corp.’s
argument that Callanan’s actions in making prior repairs constituted a special
use of the sidewalk because there was no evidence suggesting that any such
special use caused the claimed defect.

Thanks to Bill Kirrane for his
contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2011/2011_04161.htm