special use exception in New York

2026This doctrine is not limited to abutting owners, but also to occupying tenants that derive some benefit, have access to, or control the special use of the public sidewalk: "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 " ( Kaufman v Silver , 90 NY2d 204, 207 [1997] [emphasis added]).

2025On these facts, the special use doctrine is not applicable (see Kaufman v Silver, 90 NY2d 204, 207, 209 [1997]; Balsam v Delma Eng'g Corp., 139 AD2d 292, 296-298 [1st Dept 1988], lv dismissed 73 NY2d 783 [1988]).

2026More recently, the Court of Appeals reiterated that the special use doctrine applies where a property owner "derives a special benefit from that property unrelated to the public use, and is therefore required to maintain a portion of that property" ( Poirier v City of Schenectady , 85 NY2d 310, 315 [1995]).

2024Under the doctrine of special use, liability may be imposed upon a landowner who derives a special benefit from public property that is not common to the general public, typically arising from installation for private use and convenience (see Kaufman v. Silver, 90 NY2d 204, 207 [1997]; Poirier v. City of Schenectady, 85 NY2d 310, 315 [1995]).

2007The special use exception to the prior written notice rule applies where a special use confers a special benefit upon the locality (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).

2006One exception to the prior written notice requirement, however, is the special use doctrine (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).

2025As the Court of Appeals noted in Oboler v. City of New York, "even assuming that the special use doctrine applies to a manhole situated in a city public street, plaintiffs presented no proof of any special benefit conferred on the City." 8 NY3d 888, 890 (2007).

2025As the Court of Appeals noted in Oboler v. City of New York, "even assuming that the special use doctrine applies to a manhole situated in a city public street, plaintiffs presented no proof of any special benefit conferred on the City." 8 NY3d 888, 890 (2007).

2025On these facts, the special use doctrine is not applicable (see Kaufman v Silver, 90 NY2d 204, 207, 209 [1997]; Balsam v Delma Eng'g Corp., 139 AD2d 292, 296-298 [1st Dept 1988], lv dismissed 73 NY2d 783 [1988]).

2023On these facts, the special use doctrine is not applicable ( see Kaufman v Silver , 90 NY2d 204, 207, 209 [1997]; Balsam v Delma Eng'g Corp. , 139 AD2d 292, 296-298 [1st Dept 1988], lv dismissed 73 NY2d 783 [1988]).

2024"The special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use" ( Loiaconi v Village of Tarrytown , 36 AD3d 864, 865 [internal quotation marks omitted]; see O'Brien v Village of Babylon , 196 AD3d 494, 495 ).

2023"The special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use" ( Loiaconi v Village of Tarrytown , 36 AD3d 864, 865 [internal quotation marks omitted]).

2019With respect to the property defendants' motion, "it is well established that, as an abutting landowner [and tenant], [the property defendants are] not liable for injuries sustained as the result of a defect in the sidewalk unless the special use doctrine applies, i.e., the sidewalk was constructed in a special manner for [their] benefit, or unless [they] affirmatively created the defective condition or negligently constructed or repaired the sidewalk or there is a local [*2]ordinance charging [them] with the duty to maintain and repair the sidewalk and imposing liability for injuries resultin

2013“A special use is typically characterized by the installation of some object in the sidewalk or street or some variance in the construction thereof’ (id. [internal quotation marks omitted]; see Guadagno v City of Niagara Falls, 38 AD3d 1310, 1311 [2007]).

2013Under the special use doctrine, a landowner whose property abuts a public sidewalk may be hable for injuries that are caused by a defect in the sidewalk when the municipality has given the landowner permission to “interfere with a street solely for private use and convenience in no way connected with the public use” and the landowner fails to maintain the sidewalk in a reasonably safe condition (Zarnoch v Williams, 83 AD3d 1373, 1374 [2011], lv denied 17 NY3d 708 [2011] [internal quotation marks omitted]).

2013Under the special use doctrine, a landowner whose property abuts a public sidewalk may be hable for injuries that are caused by a defect in the sidewalk when the municipality has given the landowner permission to “interfere with a street solely for private use and convenience in no way connected with the public use” and the landowner fails to maintain the sidewalk in a reasonably safe condition (Zarnoch v Williams, 83 AD3d 1373, 1374 [2011], lv denied 17 NY3d 708 [2011] [internal quotation marks omitted]).

2017Although plaintiff contends that a duty arose because defendant made a special use out of the sidewalk by virtue of the fact that the driveway passed over the sidewalk, we conclude that the special use doctrine is inapplicable where, as here, there is no alleged defect in the sidewalk or driveway itself (see Capretto v City of Buffalo, 124 AD3d 1304, 1306 [2015]; see generally Kaufman v Silver, 90 NY2d 204, 207-208 [1997]).

2017Although plaintiff contends that a duty arose because defendant made a special use out of the sidewalk by virtue of the fact that the driveway passed over the sidewalk, we conclude that the special use doctrine is inapplicable where, as here, there is no alleged defect in the sidewalk or driveway itself (see Capretto v City of Buffalo, 124 AD3d 1304, 1306 [2015]; see generally Kaufman v Silver, 90 NY2d 204, 207-208 [1997]).

2024Further, although we agree with defendant that plaintiff did not raise a question of fact as to whether defendant affirmatively created the icy condition by performing "work . . . that immediately result[ed] in the existence of a dangerous condition," she did demonstrate the applicability of the special use exception to the prior written notice requirement ( Yarborough v City of New York , 10 NY3d at 728 [internal quotation marks and citations omitted]).

2024The plaintiff also concedes that the special use exception is inapplicable ( see Yarborough v City of New York , 10 NY3d at 728 ).

2001A special use exception, unlike a variance, is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood” (Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 243 ).

2001“The special use exception is tantamount to a legislative finding that, if the special exception conditions are met, such use is in harmony with the general zoning plan and will not adversely affect the neighborhood and the surrounding areas (see, Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 243 )” (Matter of Holbrook Assocs.

2011The special use doctrine creates an exception to the general rule that the duty to keep public sidewalks in a reasonably safe condition and repair lies with municipalities when “ ‘permission [has been] given, by a municipal authority, to [abutting landowners to] interfere with a street solely for private use and convenience in no way connected with the public use’ ” (Kaufman v Silver, 90 NY2d 204, 207 , quoting Clifford v Dam, 81 NY 52, 56-57 ).

2011The historical roots of the special use doctrine, however, rest in a desire to authorize the imposition of liability upon the owner of abutting land for injuries arising out of circumstances where that landowner interferes “ ‘with a street solely for private use and convenience in no way connected with the public use’ ” (Kaufman, 90 NY2d at 207 , quoting Clifford v Dam, 81 NY 52, 56-57 ).

2007As noted, the special use doctrine applies only if the sidewalk was specifically constructed in a special manner for the benefit of the abutting landowner (see Kaufman v Silver, 90 NY2d 204, 207 [1997]; Minott v City of New York, 230 AD2d 719, 720 [1996]), and that is not the case here.

2000The special use exception, relied upon by the plaintiff, “ ‘is reserved for situations where the landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use’ ” (Minott v City of New York, 230 AD2d 719, 720 , quoting Poirier v City of Schenectady, 85 NY2d 310 ).

2020Beach , 51 AD3d at 841 ).

2012Beach, 51 AD3d 840, 840-841 [2008]; Loiaconi v Village of Tarrytown, 36 AD3d 864, 865 [2007]; see generally ITT Hartford Ins.

2013Plaintiff failed to present any evidence of negligent design or construction (cf. Palmer v Rouse, 198 AD2d 629, 631 [1993]), and also presented no evidence that defendant repaired the tree grate at any time after its installation, or that the depression was present immediately after installation of the tree grate (see Oboler v City of New York, 8 NY3d 888, 889 ).

2013Plaintiff failed to present any evidence of negligent design or construction (cf. Palmer v Rouse, 198 AD2d 629, 631 [1993]), and also presented no evidence that defendant repaired the tree grate at any time after its installation, or that the depression was present immediately after installation of the tree grate (see Oboler v City of New York, 8 NY3d 888, 889 ).

2014In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village or the County created the alleged defect through an affirmative act of negligence (see Oboler v City of New York, 8 NY3d at 889 ; Wiley v Incorporated Vil. of Garden City, 91 AD3d 764, 766 [2012]; Hirasawa v City of Long Beach, 57 AD3d 846, 847-848 [2008]; Hyland v City of New York, 32 AD3d 822, 823 [2006]), and the plaintiff did not address the special use exception to the prior written notice law.

2014In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village or the County created the alleged defect through an affirmative act of negligence (see Oboler v City of New York, 8 NY3d at 889 ; Wiley v Incorporated Vil. of Garden City, 91 AD3d 764, 766 [2012]; Hirasawa v City of Long Beach, 57 AD3d 846, 847-848 [2008]; Hyland v City of New York, 32 AD3d 822, 823 [2006]), and the plaintiff did not address the special use exception to the prior written notice law.

2014In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village or the County created the alleged defect through an affirmative act of negligence (see Oboler v City of New York, 8 NY3d at 889 ; Wiley v Incorporated Vil. of Garden City, 91 AD3d 764, 766 [2012]; Hirasawa v City of Long Beach, 57 AD3d 846, 847-848 [2008]; Hyland v City of New York, 32 AD3d 822, 823 [2006]), and the plaintiff did not address the special use exception to the prior written notice law.

2014In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village or the County created the alleged defect through an affirmative act of negligence (see Oboler v City of New York, 8 NY3d at 889 ; Wiley v Incorporated Vil. of Garden City, 91 AD3d 764, 766 [2012]; Hirasawa v City of Long Beach, 57 AD3d 846, 847-848 [2008]; Hyland v City of New York, 32 AD3d 822, 823 [2006]), and the plaintiff did not address the special use exception to the prior written notice law.

2014In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village or the County created the alleged defect through an affirmative act of negligence (see Oboler v City of New York, 8 NY3d at 889 ; Wiley v Incorporated Vil. of Garden City, 91 AD3d 764, 766 [2012]; Hirasawa v City of Long Beach, 57 AD3d 846, 847-848 [2008]; Hyland v City of New York, 32 AD3d 822, 823 [2006]), and the plaintiff did not address the special use exception to the prior written notice law.

2014In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village or the County created the alleged defect through an affirmative act of negligence (see Oboler v City of New York, 8 NY3d at 889 ; Wiley v Incorporated Vil. of Garden City, 91 AD3d 764, 766 [2012]; Hirasawa v City of Long Beach, 57 AD3d 846, 847-848 [2008]; Hyland v City of New York, 32 AD3d 822, 823 [2006]), and the plaintiff did not address the special use exception to the prior written notice law.

2026Clifford v Dam , 81 NY 52 [1880]; Foster , 156 NY at 359).

1997In contrast to the matter before us, when the special use doctrine is invoked against owners or occupiers of land abutting *209 public streets or sidewalks, the requirement of access and control, although significant, poses less of a liability hurdle simply by virtue of the adjoining landowner’s or occupier’s freedom of access, along with the general public, to that portion of the property so used (see, Trustees of Vil. of Canandaigua v Foster, supra; Clifford v Dam, 81 NY 52 , supra; Nickelsburg v City of New York, 263 App Div 625 , supra).