Mitchell v. Icolari, 108 A.D.3d 600 (N.Y. App. Div. 2013). · Go Syfert
Mitchell v. Icolari, 108 A.D.3d 600 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
30 citation events (30 in the last 25 years) across 5 distinct courts.
Strongest positive: Schmid v. Town of Ausable (nyappdiv, 2025-07-17)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Schmid v. Town of Ausable (2×)
N.Y. App. Div. · 2025 · confidence medium
In opposition, plaintiff attempted to raise a factual issue concerning ownership or control by pointing to the deposition testimony of the Town's highway superintendent that the curb "should be" or "probably" is owned by the Beaudettes rather than the Town, as well as evidence that, at least six months after plaintiff's fall, the Beaudettes paid to repair the curb. [FN4] However, neither such guesswork from the superintendent concerning ownership of the curb nor proof of subsequent work were sufficient to create a question of fact as to ownership, occupancy, control or special use ( see Sunnyv…
discussed Cited as authority (rule) L.B. v. Hanson Place Seventh-Day Adventist Church
N.Y. Sup. Kings · 2025 · confidence medium
Duty of Care To sustain a claim sounding in negligence, Plaintiff must demonstrate a duty of care owed by Defendants to Plaintiff, a breach of that duty, and injury proximately caused by said breach (see Borghese v Redard, 226 AD3d 639 , 640 [2d Dept 2024]; Mitchell v Icolari, 108 AD3d 600, 601 [2d Dept 2013]).
discussed Cited as authority (rule) L.B. v. Hanson Place Seventh-Day Adventist Church
N.Y. Sup. Kings · 2025 · confidence medium
Duty of Care To sustain a claim sounding in negligence, Plaintiff must demonstrate a duty of care owed by Defendants to Plaintiff, a breach of that duty, and injury proximately caused by said breach (see Borghese v Redard, 226 AD3d 639 , 640 [2d Dept 2024]; Mitchell v Icolari, 108 AD3d 600, 601 [2d Dept 2013]).
discussed Cited as authority (rule) Harrison v. 4919 Church, Inc.
N.Y. App. Div. · 2016 · confidence medium
Specifically, the evidence submitted in support of the motion, which included photographs of the accident site, the deposition testimony of the parties, a survey of the area, and the affidavit of a surveyor, established, prima facie, that the plaintiffs fall was caused by an alleged defect that was present in a portion of the sidewalk abutting the property owned by 4919 Church, and not the property owned by Mun, and that they did not create the condition or cause the alleged defect to occur (see Byron v City of New York, 119 AD3d 625, 626-627 [2014]; Mitchell v Icolari, 108 AD3d 600, 602 [2013…
discussed Cited as authority (rule) Khanimov v. McDonald's Corp.
N.Y. App. Div. · 2014 · confidence medium
In addition, the Supreme Court correctly granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant McDonald’s Restaurants of New York, Inc. Liability for a *1052 dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property (see Mitchell v Icolari, 108 AD3d 600, 601-602 [2013]; Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2005]).
discussed Cited as authority (rule) Lorenzo v. Ortiz Funeral Home Corp.
N.Y. App. Div. · 2014 · confidence medium
Since the sidewalk defect that caused the accident was located in front of the neighboring property and was not caused or created by Electro/Stellar, they did not have any obligation to repair the defect (see Mitchell v Icolari, 108 AD3d 600, 601-602 [2d Dept 2013]; Administrative Code of City of NY § 7-210; see also Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).
discussed Cited as authority (rule) Lorenzo v. Ortiz Funeral Home Corp.
N.Y. App. Div. · 2014 · confidence medium
Since the sidewalk defect that caused the accident was located in front of the neighboring property and was not caused or created by Electro/Stellar, they did not have any obligation to repair the defect (see Mitchell v Icolari, 108 AD3d 600, 601-602 [2d Dept 2013]; Administrative Code of City of NY § 7-210; see also Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).
discussed Cited as authority (rule) Ruggiero v. City School District
N.Y. App. Div. · 2013 · confidence medium
To sustain a cause of action alleging negligence, the defendant must owe a duty of care to the plaintiff, which is then breached, proximately causing the plaintiffs injury (see Turcotte v Fell, 68 NY2d 432, 437 [1986]; Mitchell v Icolari, 108 AD3d 600, 601 [2013]; Kraut v City of New York, 85 AD3d 979, 980 [2011]). “ ‘[Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or special use of property’ ” (Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565 , 566 [2005], quoting Warren v Wilmorite, Inc., 211 AD2d 904, 905 [1995]).
discussed Cited "see" Gruber v. Hallen Constr. Co., Inc. (2×)
N.Y. Sup. Kings · 2025 · signal: see · confidence high
See, Mitchell v Icolari, 108 A.D.3d 600 , 969 N.Y.S.2d 503 (2 nd Dept., 2013).
cited Cited "see, e.g." Hudson Neurosurgey, PLLC v. UMR, Inc.
S.D.N.Y. · 2022 · signal: see, e.g. · confidence low
See, e.g., Mitchell v. Icolari, 969 N.Y.S.2d 503 , 505 (2013); see also 2002 Lawrence R.
discussed Cited "see, e.g." 2002 Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Life Assurance Co. (2×)
S.D.N.Y. · 2015 · signal: see, e.g. · confidence low
See, e.g., Mitchell v. Icolari, 108 A.D.3d 600 , 969 N.Y.S.2d 503 , 505 (2013); Edenshaw v. Safeway, Inc., 186 P.3d 568, 571 (Alaska 2008).
Retrieving the full opinion text from the archive…
Michael Mitchell
v.
Eileen Icolari, and City of New York
Appellate Division of the Supreme Court of the State of New York.
Jul 10, 2013.
108 A.D.3d 600
Cited by 19 opinions  |  Published

[*601] In an action to recover damages for personal injuries, the defendant Eileen Icolari appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated May 8, 2012, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

Ordered that the order is reversed, on the law, with one bill of costs, and the motion of the defendant Eileen Icolari for summary judgment dismissing the complaint and all cross claims insofar as asserted against her is granted.

The plaintiff allegedly tripped and fell on a raised sidewalk flag while walking on St. Marks Place in Staten Island. The plaintiff commenced this action against Eileen Icolari, who owned the property located at 1-5 St. Marks Place, and the City of New York, to recover damages for his personal injuries allegedly caused by their negligence. In his complaint and bill of particulars, the plaintiff identified the location of the alleged defect as being in front of 1-5 St. Marks Place, situated approximately 50 to 75 feet east of the northeast corner of the intersection with Westervelt Avenue. With respect to Icolari, the plaintiff alleged that she owned, operated, and maintained the subject portion of the sidewalk.

After the completion of discovery, Icolari moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against her, asserting that the area where the accident occurred did not abut her property. The Supreme Court denied the motion, finding that triable issues of fact existed as to the ownership and control of the raised sidewalk flag.

The elements of a cause of action alleging negligence are the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach proximately caused the injury (see Turcotte v Fell, 68 NY2d 432, 437 [1986]; Kraut v City of New York, 85 AD3d 979, 980 [2011]; Ruiz v Griffin, 71 AD3d 1112, 1114 [2010]; Ingrassia v Lividikos, 54 AD3d 721, 724 [2008]). “ ‘[L]lability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or special use of the property’ ” (Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2005], quoting Warren v Wilmorite, Inc., 211 AD2d 904, 905 [1995]; see Irizarry v Heller, 95 AD3d 951, 953 [2012]; Quick v G.G.’s Pizza & Pasta, Inc., 53 AD3d 535, 536 [2008]). Where none of these factors is present, “a party cannot be held liable for injuries caused by the allegedly defective condition” (Gover v Mastic Beach Prop. Owners Assn., 57 AD3d 729, 730 [2008]; see Cerrato v Rapistan Demag Corp., 84 AD3d 714, 716 [2011]; Sanchez v 1710 Broadway, Inc., [*602] 79 AD3d 845, 846 [2010]; Kydd v Daarta Realty Corp., 60 AD3d 997, 998 [2009]; Dugue v 1818 Newkirk Mgt. Corp., 301 AD2d 561, 562 [2003]; Aversano v City of New York, 265 AD2d 437 [1999]).

Icolari established, prima facie, her entitlement to judgment as a matter of law by submitting evidence, including a survey of her property and photographs showing that the alleged defect was located in front of Icolari’s neighbor’s property, and excerpts from the plaintiffs deposition testimony confirming the location of the alleged defect at a point beyond Icolari’s property line, thereby demonstrating that Icolari did not own, occupy, control, or put to a special use the sidewalk where the defect which allegedly caused the plaintiff to fall was located (see Irizarry v Heller, 95 AD3d at 953; James v Stark, 183 AD2d 873, 873 [1992]). Therefore, Icolari established that she did not owe a duty to the plaintiff with respect to the subject defect (see Irizarry v Heller, 95 AD3d at 953).

In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiffs contention, evidence that Icolari repaired the alleged defect located on the sidewalk abutting her neighbor’s property subsequent to the happening of the accident did not create a question of fact as to ownership and control of the area where the alleged defect was located.

In light of our determination, Icolari’s remaining contentions need not be considered.

Accordingly, the Supreme Court improperly denied Icolari’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her. Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.