Premises Liability: Arrow v. Vestal Shoe Repair

Appellate Division, Third Department

Premises Liability

Sidewalks — Duty to Maintain

Arrow v. Vestal Shoe Repair
509864
Appealed from Supreme Court, Broome County

Background: This appeal is from an order which granted defendant’s motion for summary judgment dismissing the complaint. The plaintiff tripped and fell over raised asphalt located between the sidewalk and the entrance to defendant’s business in the Town of Vestal. She commenced this personal injury action to recover for her alleged injuries and, following joinder of issue, defendant moved for summary judgment. Supreme court granted the motion and dismissed the complaint.

Ruling: Here, as the court notes, neither party asserts that a statute or ordinance requires defendant to maintain the sidewalk. Moreover, defendant’s proprietor testified that he had made no changes to the sidewalk or asphalt since purchasing the adjoining premises, and the town had no records establishing who had installed the asphalt, which was consistently present between the buildings and sidewalk along that part of the street. This evidence was sufficient to satisfy the defendant’s burden of establishing its prima facie entitlement to judgment as a matter of law, thus shifting the burden to the plaintiff to demonstrate the existence of a triable issue of fact. She failed to do so and as a result, the judgment is affirmed.

Douglas Walter Drazen for the appellant; Joseph R. Pacheco II of the Law Office of Theresa J. Puleo for the respondent