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GIOVANNI PORTELLI, ET AL., appellants, v. BERNARDO A. GARCIA, ET AL., defendants, VIGLIOTTI ENTERPRISES, LLC, respondent.

DECISION ORDER

ORDERED that the order is affirmed, with costs.

Absent a duty of care to the person injured, a party cannot be held liable in negligence ( see Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 342, rearg denied 249 N.Y. 511). Here, the defendant Vigliotti Enterprises, LLC, did not owe the injured plaintiff a duty of care with respect to the safety of the off-site area where the accident occurred ( see Azriliant v. Newfy, Inc., 229 A.D.2d 411, 411-412; Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298). While an exception to the rule exists where the owner of the abutting property makes a special use of the adjacent premises or creates or contributes to the dangerous condition ( see Vought v. Hemminger, 220 A.D.2d 580, 582; Herbert v. Rodriguez, 191 A.D.2d 887; Balsam v. Delma Eng'g Corp., supra), contrary to the plaintiffs' contention, a "common occurrence [such] as a line of waiting cars on the public thoroughfare outside a car wash, parking lot or other facility open to the public" does not constitute a special use of the public street ( Balsam v. Delma Eng'g Corp., supra at 299).

The plaintiffs' remaining contentions are without merit.

PRUDENTI, P.J., KRAUSMAN, TOWNES and SPOLZINO, JJ., concur.

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PORTELLI v. GARCIA
(Jun 1, 2004)