In two separate cases, Anne Marie Esposito secured the dismissal of all claims against a national grocer on summary judgment grounds. In each of the cases, the Plaintiffs claimed that they fell due to a defect in a parking lot, which was adjacent to the store entrance and located in front of a small shopping center with three tenants in Hewlett, New York. Plaintiffs alleged negligence in the ownership, control, maintenance and repair of the parking lot.
In New York, a defendant can be liable for a defect on property which it owns, occupies or controls. See, e.g., Zylberberg v. Wagner, 119 A.D.3d 675, 676 (2d Dep’t 2014). Additionally, a defendant can be liable if it: (1) had control over the property sufficient to authorize maintenance and repair of the property; and (2) used the property exclusively for its own use. See Kaufman v. Silver, 90 N.Y.2d 204, 207–08 (1997); Breland v. Bayridge Air Rights, Inc., 65 A.D.3d 559, 560 (2d Dep’t 2009). This is known as the “special use” doctrine. Kaufman, 90 N.Y.2d at 207–08.
In the first case, the court held that Plaintiff failed to raise a material issue of fact that the grocer had “special use” of the parking lot. In support of her argument, Plaintiff submitted the affidavit of an engineer who concluded that the parking lot defect was caused by garbage trucks and delivery trucks traveling in front of the store. Plaintiff argued that the dumpsters were used exclusively by the grocer and that the deliveries were made for its exclusive benefit. The court, however, found that the affidavit was speculative and insufficient to raise a material issue of fact because it failed to identify any data in support of its conclusion that the trucks caused the alleged defect.
In the next case, the court also held that the grocer did not have special use of the parking lot. While Plaintiff argued that the grocer put up a fence and housed its dumpsters in the Town of Hempstead’s parking lot, the testimony established that the Town of Hempstead was responsible for repairs there and that other stores’ customers used the parking lot. As a result, the court found that the grocer did not have exclusive use or control of the parking lot and was, therefore, not responsible for any defects.