MOSCHILLO v. 3880 (2002)

Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered December 13, 2000, which granted defendant 3880 Boston Realty's motion to reargue, and upon reargument adhered to its original decision, and order entered January 3, 2000, which denied this defendant's motion for summary judgment dismissing the complaint against it, unanimously reversed, on the law, without costs and the motion granted.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

 Plaintiff alleges he was injured when he fell into a hole in a sidewalk in front of defendant's 3880 Boston Road premises, which contained commercial storefronts.   The sidewalk is a public sidewalk, over which defendant maintains no control and for which it enjoys no special use.   The record evidences that defendant Con Edison had excavated the hole in the sidewalk.   It is well established that in the absence of an obligation created by statute or ordinance, an abutting landowner will not be liable to a pedestrian on a public sidewalk for injuries suffered as a result of a sidewalk defect unless the landowner created the defective condition or caused the defect to occur because of some special use of the sidewalk (Kaufman v. Silver, 90 N.Y.2d 204, 659 N.Y.S.2d 250, 681 N.E.2d 417;  Benenati v. City of New York, 282 A.D.2d 418, 723 N.Y.S.2d 69).   Even if the present defendant used a portion of the sidewalk for driveway purposes, the evidence fails to show that “the defect was caused by the appellant's special use of the sidewalk as a driveway or that the driveway in any way contributed to the allegedly defective condition” (Benenati, id.;   compare, Infante v. City of New York, 258 A.D.2d 333, 685 N.Y.S.2d 205[gas station used sidewalk as driveway and parking area, and the evidence established that this special use caused the defect] ).

Accordingly, summary judgment should have been granted to this defendant.