SHARIF v. Rosalie Katz, et al., Defendants-Appellants. (1998)

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered October 21, 1997, which denied the motion of defendants Katz and Ayelet Realty Co. for summary judgment dismissing the complaint as to them, unanimously reversed, on the law, without costs, defendants-appellants' motion granted and the complaint dismissed as to them.   The Clerk is directed to enter judgment accordingly.

 The motion court erred in denying the moving defendants summary judgment.  “[A]bsent an obligation created by statute or ordinance, an abutting landowner or lessee will be held responsible for maintaining or repairing defects in a public sidewalk only if the owner or lessee created the defect, or the owner or lessee uses the sidewalk for a special purpose” (Frank v. City of New York, 211 A.D.2d 478, 621 N.Y.S.2d 546).   Where such a defendant moves for summary judgment and competently denies “having contributed in any way to the allegedly defective condition of the sidewalk”, the plaintiff must present evidence opposing the denial (Morrissey v. City of New York, 248 A.D.2d 294, 670 N.Y.S.2d 465, 466).

 The plaintiff fails to offer such opposing evidence and instead offers only speculation that defendants must have made the defective sidewalk repairs at issue here, since they were purportedly obligated to do so by various City provisions, and an improper inference based on the City's denial that it made the repairs (see, e.g., Morrissey, supra, at 295, 670 N.Y.S.2d 465 [“the mere fact that the City denied making the repairs to the sidewalk did not constitute evidence that (defendants) had performed the repair”] ).   Administrative Code § 19-152 and the other City provisions cited do not impose liability on the moving defendants under these circumstances, since they do not specifically impose liability for injuries resulting from the breach of the duty to maintain the sidewalk (see, Hausser v. Giunta, 88 N.Y.2d 449, 453, 646 N.Y.S.2d 490, 669 N.E.2d 470).

MEMORANDUM DECISION.